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Wurm v. Wurm

OPINION FILED JANUARY 31, 1979.

WILLIAM C. WURM, PLAINTIFF-APPELLANT,

v.

JUDITH O. WURM, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Iroquois County; the Hon. ROBERT L. DANNEHL, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Iroquois County granting permanent custody of three minor children, Ronald Wurm, Russell Wurm, and Robert Wurm, to their mother and the respondent in this cause, Judith O. Wurm. The order granting permanent custody was rendered on November 4, 1977, in a decree which was supplemental to a decree of April 18, 1977, granting a divorce from the respondent to the father of the children and petitioner in this cause, William C. Wurm. The petitioner argues on appeal that the award of custody was contrary to the best interests of the children, was against the manifest weight of the evidence, and was unconstitutionally grounded on the "tender years doctrine." Because petitioner alleges that the trial court decision was contrary to the best interest of the child, it becomes necessary as a threshold matter to identify what statutory standard ought to be applied in determining the child's best interest.

• 1 The decree of divorce was entered in this cause on April 18, 1977, but the order granting permanent custody to the respondent was not rendered until November 4, 1977. The Illinois Marriage and Dissolution of Marriage Act took effect on October 1, 1977. The Act provides that it shall apply "to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered." (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) Inasmuch as the judgment resolving the custody issue in the instant case was not rendered until after the effective date of the new act, the statutory standard for determining the best interest of the child must be as set forth in the Illinois Marriage and Dissolution of Marriage Act. Schubert v. Schubert (1978), 66 Ill. App.3d 29; West v. West (1978), 62 Ill. App.3d 963, 379 N.E.2d 930.

The new act sets forth the standard for awarding child custody as follows:

"(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child." (Ill. Rev. Stat. 1977, ch. 40, par. 602.)

We note that the statute speaks in the imperative, as it directs that the trial court "shall" consider the enumerated factors.

The judgment of the Iroquois County circuit court fails to make any findings with regard to the enumerated factors. The judgment order's summary conclusions are hereinafter set forth by way of illustration:

"This cause coming on for further hearing on the issue of the custody of the parties' three children * * *, the Court having heard evidence and arguments of ...


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