APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
This case involves the interpretation of section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610) which governs the modification of custody judgments. Plaintiff Gladys Doyle appeals from an order of the circuit court of McLean County granting a petition to modify and awarding custody of the parties' two minor children to defendant William Doyle. On appeal, plaintiff contends (1) the court improperly applied the standards set forth in section 610, (2) the decision was contrary to the manifest weight of the evidence, and (3) the court failed to make the findings necessary to support its decision.
Plaintiff and defendant were married on August 3, 1963, in Pennsylvania and had two children: William born 2/21/69 and Megan born 2/9/73. On August 17, 1976, in the circuit court of McLean County, plaintiff was granted a divorce from defendant on the grounds of mental cruelty. The divorce decree granted custody of the children to plaintiff subject to defendant's right to reasonable visitation in accordance with the terms outlined in the property settlement approved by the court and incorporated into the decree.
On Sunday, December 5, 1976, while defendant had taken the children on an outing, plaintiff had a seizure or a blackout related to her heavy consumption of alcohol and was taken to Mennonite Hospital in Bloomington. Defendant arranged for a friend to take care of the children that night, and the following day he purchased a home and the children moved in with him. On December 9, 1976, defendant was awarded temporary custody of the children pursuant to a petition for adjudication of wardship filed by the McLean County State's Attorney in a juvenile proceeding. On January 12, 1977, he filed a petition to modify the divorce decree as to custody of the minors. The petition alleged a substantial change in circumstances since the entry of the divorce decree which affected the children's welfare and listed specific allegations of plaintiff's lack of fitness to have custody. The children continued to live with defendant from December 6, 1976, until the time of the hearing on the petition, November 3-4, 1977.
The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101-802) became effective October 1, 1977. Defendant's petition was pending at that time and thus was governed by the provisions of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 801). Section 610 of the Act provides in part:
"Modification.) (a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him." Ill. Rev. Stat. 1977, ch. 40, par. 610.
In compliance with section 610(a) of the Act, defendant filed an affidavit stating that there was reason to believe that the children's environment with plaintiff would endanger their physical, mental, moral, and emotional health, and in support thereof referred to his earlier petition to modify. An identical affidavit signed by Benjamin Moore, a child clinical psychologist who had examined the parties' minor children, was filed November 3, 1977, the date of the hearing.
1 Plaintiff argues that the terms "custody judgment" and "prior custody judgment" as stated in the statute refer to final rather than temporary orders of custody. The supreme court of Montana interpreting their similarly worded statute so held in Groves v. Groves (1977), ___ Mont. ___, 567 P.2d 459. We agree. The effective use of temporary custody orders would be greatly reduced if they could only be vacated or modified in conformity with the stringent requirements of section 610. Here the "prior custody judgment" was the original divorce decree.
Plaintiff also contends that the phrase "the child's present environment" as used in subsection (b)(3) refers to the environment which she as the custodian under the "prior custody judgment" would be able to furnish the child at the time of the hearing on the petition for modification. The statute is not clear as to how this phrase is to be interpreted, particularly in cases where, as here, the child has been in the temporary custody of the other parent for a substantial period of time prior to the hearing.
A possible interpretation is that the phrase refers to the situation at the time of the filing of the motion to modify. Under somewhat similar circumstances in Groves where the child had been in the temporary custody of the non-custodial parent for 1 1/2 years before a ...