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Barclay v. Barclay

OPINION FILED DECEMBER 29, 1978.

MICHAEL J. BARCLAY, PLAINTIFF,

v.

KIM D. BARCLAY, A/K/A KIM JOHNSON, DEFENDANT-APPELLANT. — (CLAYTON BARCLAY ET AL., INTERVENORS-APPELLEES.)



APPEAL from the Circuit Court of Tazewell County; the Hon. WILLIAM J. REARDON, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Defendant Kim Barclay appeals from an order changing custody of her son James Barclay from the father to the paternal grandparents.

James was born in 1970, the son of Michael Barclay and defendant. The young couple lived in Pekin until Michael enlisted in the United States Navy. In May of 1972, defendant and the baby joined Michael in Connecticut where he was stationed but marital problems arose, and in October 1972, Michael took 15-month-old James back to Pekin and left him with Michael's parents, Clayton and Doris Barclay. Defendant apparently agreed with this arrangement. A few months later Michael obtained an uncontested divorce from defendant in Connecticut. The divorce decree awarded custody to Michael, but James in fact was then living with his grandparents and has continued to do so until the present time.

After the divorce defendant remained in the East and did not see her son until she returned to Pekin in May of 1974. She obtained work as a waitress, but three months later she moved to South Carolina for a few months and then returned to Pekin where she lived with a married sister and worked as a bartender. In March of 1975 she went back to South Carolina with Michael Johnson who had been a classmate of Michael Barclay at submarine school in the Navy. After Johnson received his discharge from the Navy, he and defendant were married. They have resided in Wichita, Kansas, since July 12, 1975, and both are employed by Cessna Aircraft Corporation. Defendant, who was 24 years old at the time of trial, has visited James several times over the years and spent one week with him in the grandparents' home during May of 1976.

In December of 1976, the grandparents as intervenors filed a complaint in the Circuit Court of Tazewell County to have the Connecticut judgment for divorce entered as an Illinois judgment and to have the Connecticut custody provision modified by transferring custody to themselves. Defendant filed a counterclaim in the Illinois proceeding to obtain custody herself. The father did not respond to either the complaint or the counterclaim and was in default as to both.

The trial court heard extensive evidence concerning past and present circumstances of all the parties. Briefly, the evidence indicates that prior to her second marriage, defendant was unsettled and impoverished but that she now has a happy stable marriage and her circumstances are much improved. She and her husband have purchased and fixed up an older, three-bedroom home and have bettered themselves financially. To prepare for the custody hearing, defendant voluntarily obtained a home study by a social worker and a psychiatric evaluation, both of which indicate that she and her husband are intelligent and mature, and are fit persons to have custody of James.

At the time of trial the grandmother was a 49-year-old school teacher who is described as a warm, affectionate person and who has been very close to James. The grandfather is 52 and works nights for a farm supply company so that he can be at home with James in the mornings. The Barclays are active in their church and have provided James with a stable loving home. James, who did not appear in court, was characterized as a bright, happy, outgoing seven-year-old. His father, Michael Barclay, lives in Pekin and sees James once every week or two. There was evidence indicating that Michael has a history of drug problems and that he is somewhat unstable emotionally. He testified on behalf of his parents and against his ex-wife.

At the conclusion of the custody hearing the trial court found that defendant "has completely turned herself around," has a fine marriage, and could now provide a good home for her son. The court stated that the Barclays originally took James as temporary custodians but with the passage of time their position changed to that of parents. After noting that a natural parent is ordinarily given a preference over persons who are not parents, the court stated that even so, the overriding consideration is the best interest of the child. The court concluded that James' best interest would not be served by taking him from the home that has, with the passage of time, become his home. The court also ruled that defendant had no support obligation but was entitled to reasonable rights of visitation. This appeal followed. Since the trial and judgment order occurred after October 1, 1977, the issues on appeal are governed by the provisions of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1977, ch. 40, par. 801(b).

Defendant seeks a reversal on three grounds: (1) that the best interest of a child of tender years is presumptively with its mother; (2) that a natural parent has a superior right to custody over the grandparents; and (3) that the decision of the trial court was contrary to the manifest weight of the evidence.

Defendant first contends that the trial court failed to apply the "tender years doctrine" whereby a child of tender years will be entrusted to the care and custody of the mother, if she is a fit and proper person to rear the child, upon the theory that maternal affection is more active and better adapted to the care of a child. Defendant argues that since she was not proven unfit, the court should have awarded custody to her. The doctrine was discussed with approval in Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300, where the court said that to deny custody of a young child to the mother, compelling evidence must be presented proving the mother to be an unfit person, or there must be a positive showing that to deny custody to the mother would be for the best interests of the child.

• 1 Defendant's argument is without merit. This doctrine presupposes a custody dispute between a father and a mother, not between a mother and grandparents, and thus would not apply here.

Second, defendant claims that a natural parent has a superior right to custody as against the right of any other person, including grandparents, unless the natural parent is unfit. This rule was recognized in such cases as Eaton v. Eaton (1st Dist. 1977), 50 Ill. App.3d 306, 365 N.E.2d 647 and Stingley v. Wesch (4th Dist. 1966), 77 Ill. App.2d 472, 222 N.E.2d 505.

• 2 Of particular pertinence to this issue is the case of Look v. Look (3d Dist. 1974), 21 Ill. App.3d 454, 315 N.E.2d 623, where a divorce decree had awarded custody of an infant child to the mother but the actual care of the child was provided by the maternal grandparents. After five years the natural father sought to modify the decree to obtain custody, and the maternal grandparents intervened. In affirming the trial court's order which gave custody to the grandparents, this court said:

"In proceedings affecting the custody of a child, the primary consideration is the present and prospective welfare of the child, or, as otherwise stated, the best interests of the child. Naturally, no hard-and-fast rule can be laid down as to what will best serve the welfare and interests of a child. Each case must be determined according to its own circumstances and the question rests largely in the sound discretion of the trial court. When the people having the actual custody of the child at the time a change is sought have properly provided and supervised its needs for a substantial period of time and the child has become attached to the environment and to the grandparents who have made possible the happiness, security and comfort of its early years, a court is not justified in transferring that custody to another, except for the most cogent reasons. When ...


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