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In Re Custody of Harne

OPINION FILED SEPTEMBER 19, 1979.

IN RE CUSTODY OF GREGORY GENE HARNE ET AL. (GENE M. HARNE, APPELLANT,

v.

NANCY HARNE JOHNSON ET AL., APPELLEES).



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Winnebago County, the Hon. John C. Layng, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 30, 1979.

This case concerns the custody of two minor children, Gregory Gene Harne, age 11, and Carrie Lynn Harne, age 9. Their parents, Nancy Harne Johnson and Gene M. Harne, were divorced on June 27, 1972, and Mrs. Harne was awarded legal custody of the children. In the fall of 1975, however, Mrs. Harne's parents took physical custody of the children when Mrs. Harne found herself unable to provide adequate care for them. On August 19, 1976, the father filed a petition for change of custody in the Winnebago County circuit court. The trial court granted the petition and modified the prior custody decree, by transferring legal custody of the children to the father, subject to reasonable visitation by the children's mother and grandparents. On appeal, a divided Second District Appellate Court reversed and remanded (66 Ill. App.3d 820) on the grounds that the trial court failed to comply with section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)). We allowed leave to appeal.

At the time of the trial court hearing, the two children, Gregory and Carrie, were living with the maternal grandparents, Mr. and Mrs. McManus, in a three-bedroom home in North Park. They are now approximately 70 and 68 years of age and are dependent upon social security and a monthly pension for support. The McManuses requested, and were granted, leave to intervene as defendants in this custody-modification proceeding.

The children's mother, Nancy Harne Johnson, is approximately 31 years of age, is remarried, and has a 2-year-old daughter by her present husband. Mrs. Johnson has lived in a number of different locations since her divorce. At the time of the trial court hearing she was living in a one-bedroom apartment above a tavern and was working as part of a daytime cleanup crew at the Poison Apple Disco. She testified that she did not presently desire to have actual physical custody of the children, but instead preferred to have the children stay with her parents. She did state, however, that should anything happen to her parents, she would take physical custody of the children.

The children's father is 32 years of age, remarried and has two children, aged 5 and 2, by his present wife. The family lives in a three-bedroom home in Loves Park. Apparently, all of the parties live within what might be described as the "Greater Rockford" area. At the time of the hearing, Harne had been employed as an assembly line worker at the Chrysler plant in Belvidere for 13 years. His wife testified that she supported her husband's request for custody of his two children and that she would be home full time to care for them should custody be granted to him.

Following the trial court's action of transferring custody to the father subject to reasonable visitation by the mother and grandparents of the children, the grandparents filed a motion to reconsider. The basis for their motion was that the trial court allegedly failed to make certain findings of fact as required by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act. The trial court denied the motion, a ruling which the appellate court held erroneous.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act, which is patterned after section 409(b) of the Uniform Marriage and Divorce Act, provides as follows:

"(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 the 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(b).)

The issues before us are: (1) whether a trial court judge must make an explicit finding that one of the three factors listed in section 610(b) exists before a valid child-custody-modification order can be entered, and (2) if so, has the trial court ...


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