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In Re Marriage of Sieck

OPINION FILED OCTOBER 30, 1979.

IN RE MARRIAGE OF PATRICIA SIECK, PETITIONER-APPELLANT, AND EKKEHARD SIECK, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. FLECK, Judge, presiding.

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

In a child-custody proceeding following marital dissolution Ekkehard Sieck, the father (hereinafter respondent), was awarded sole custody of the two children born of the marriage. The mother, Patricia Sieck *fn1 (hereinafter petitioner), appeals, seeking reversal of the custody order. She raises two principal issues, namely, whether the award of custody to respondent was against the manifest weight of the evidence; and hearsay was properly admitted over timely objection.

Petitioner and respondent were married on October 18, 1969. Their son, Darren M., was born November 11, 1973, and their daughter, Jessica M., was born September 30, 1974. On December 26, 1975, the parties separated, petitioner leaving the marital home in Elk Grove Village with the children to live with Ken Wyant and his parents. On January 7, 1976, petitioner sued to dissolve the marriage on the grounds of mental cruelty and on that date was awarded temporary custody of the children, which she maintained until the permanent custody hearing. In an amended petition, she charged respondent with desertion and adultery. Judgment for dissolution of the marriage was entered on January 5, 1978, expressly reserving questions of maintenance, child support, child custody and property rights for further hearing. The custody order, entered February 9, 1978, found that both parents were fit and proper persons to have care, custody and control of the minor children. In contemplation of the relevant factors set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 602), however, custody was awarded to respondent in the best interests of the children.

At the custody hearing petitioner testified on her own behalf. She and respondent moved into the marital residence in July of 1970. Because respondent told her to get out, she and the children moved out on December 26, 1975, moving in with Kathleen and Kenneth Wyant (then living) in Elk Grove Village where they stayed for two weeks. Thereafter they moved into her grandmother's house in Brookfield where they stayed until the beginning of March 1976. They then moved into an apartment in Itasca where they resided for six months, returning to the marital home on September (later corrected to August) 1, 1976, where they resided since. No one else lived there with them. Darren attended nursery school in Niles, Illinois, two days per week. Jessica was too young to attend school. Petitioner took the children to a pediatrician on a regular basis for childhood diseases and complaints. Darren was one month prematurely born and Jessica three months. She was kept in a high-risk intensive care nursery where she spent two months before being released from the hospital. During the time of their marriage, respondent spent very little time with the children or at home; when at home he recognized petitioner and the children for short periods of time and thereafter watched television. Respondent administered either very severe punishment as discipline for the children or none at all.

Under cross-examination petitioner testified that she placed Darren in the nursery school in Niles, the village in which Wyant later lived with his parents, because schools in other suburbs were unavailable, although she did not check any other suburb. Darren received a bump on his head after having fallen from his tricycle in April 1975 and was kept overnight at a hospital.

Respondent, under section 60 (Ill. Rev. Stat. 1977, ch. 110, par. 60) examination, testified that he owned a beauty shop in Park Ridge situated in a building in which there was another business office and a three-room apartment, where he lived alone. The apartment contained a living room, kitchen, bedroom and bath, and could accommodate the residence of both children. During the periods of visitation with his children while in custody of petitioner, his friend, Jenny Lee, was present on occasion. He found the children reasonably well dressed, in clean clothes with occasional colds and normal children's illnesses. On one occasion he took Jessica to a doctor for examination because she had a bad cold and a lump on her forehead. He never saw his wife abuse the children since their separation. Aside from seeing a medical doctor, he had himself consulted with a friend who was a psychologist because of problems occasioned by the separation. His children were normal, were happy to see him, and got along well with him. He never observed how they got along with their mother; however, they told him that they did not get along with her.

Petitioner's father, Ray A. Lokay, who resided in Allentown, Pennsylvania, testified that he visited the Siecks' marital home from the inception of their marriage on an average of twice per month and spoke with his daughter on an average of three or four times per week. When he observed respondent together with the children, they were ignored by him for the most part, whereas his daughter was a loving, kind mother, interested in the welfare of the children. The environment in the home between the mother and children was excellent and the living accommodations more than adequate. The children were receiving religious training. Darren has a good personality, was very outgoing and was a happy child. Jessica was articulate, very bright and loving both to her mother and her grandparents. Both children were very stable. On cross-examination, Lokay testified that in addition to calling his daughter at the marital home, he also reached her at another daughter's home or at the Wyant home.

Richard L. Marks, M.D., specializing in pediatrics, testified for petitioner. He saw the Sieck children for routine care. Darren was seen about 15 times in the previous four years which included visits for immunizations, illnesses and for the purpose of determining whether or not there was any evidence of child abuse; he found no such evidence. He also saw Jessica on 15 or 20 occasions just after her release from the hospital, also for immunizations, childhood diseases and similar complaints. On the occasions that he saw the Sieck children, he made recommendations to the mother which she followed. On cross-examination he testified that he did not know whether the children were taken to see some other doctor or hospitalized without his knowledge. He did not know where the children lived although he knew that the mother changed addresses. He did not consider the number of visits made by the children to see him unusual or unnecessary. He regarded the complaints of both children to have been within the realm of "normal."

Margaret Kohler, petitioner's sister, was called on her behalf. She testified that she lived in the same household with petitioner and her children in April of 1976 and again in September of that year. On the first occasion she lived with petitioner in Elk Grove Village and thereafter in her own residence in Carpentersville and then in Woodstock. They stayed together for at least a week or longer and spent many weekends together. She thereafter moved to Pennsylvania where she has lived for about one year. She came to visit the previous summer for a period of two weeks, in September 1977. She and petitioner communicated by telephone every couple of weeks. The children appeared to have been in very good health and got along very well with their mother. Jessica was extremely attached to petitioner and showed a great affection for and trust in her. Darren had the same affectionate personality as his sister and a great attachment for his mother. Petitioner conducted herself very well toward the children and gave them a structured type of day including necessary discipline which sometimes resulted in a spanking. On the occasions where she had seen respondent in the family setting before the separation and divorce, he did not seem to show a lot of interest in the children or talk to them when he came home from work. On cross-examination she stated that she had been able to reach her sister by telephone at Wyant's house, but did not know the number of times. Wyant was a friend of hers.

Dr. Jack Arbit, licensed to practice in the State of Illinois, was called by respondent. He received bachelor's, master's and doctorate degrees from the University of Illinois, the latter two in psychology, and was a professor in the department of neurology and in the department of psychiatry at Northwestern University Medical School. He was a lecturer at the Loyola Medical School. He was the director of the psychological testing program at Northwestern Memorial Hospital and the director of the behavioral neurology program at Loyola Hospital. Petitioner's counsel stipulated that he was an expert in psychology. He had made between 600 and 700 evaluations of children ages seven years and under and had previously testified in court cases.

Dr. Arbit evaluated Darren and Jessica, who were first submitted to a series of psychological tests conducted by another hospital psychologist and were thereafter subjected to his own psychological testing on April 25, 1977, when they were brought to him by respondent. He interviewed each child first separately and then together with the father. The tests administered were a Stanford-Binet Intelligence Scale, a Peabody Picture-Vocabulary Test and a Michigan Picture Story Test. After the tests were administered to the children, he carried out a diagnostic clinical evaluation. The testing took between 9 a.m. and noon to complete.

Based upon his examination of Darren, Dr. Arbit concluded that he was a frightened youngster who was overwhelmed by the relationships he had with the figure he identified as mother, becoming extremely distraught and distressed in attempting to deal with it. The child showed significant developmental and neurotic disturbances, which, in his opinion, could be causatively localized to a significant extent in the relationship with the mother. Other things being equal, he believed the family of the father would be more acceptable psychologically and most helpful therapeutically for Darren. In October 1977 he again evaluated Darren following essentially the same procedures except for the intellectual testing but added another personality test called the Blackie Test. He again saw the youngster feeling overwhelmed by difficulties in dealing with a mother image that he identified as very possessive and demanding in a pattern that seemed an extension of what had been noted at the first testing. The second evaluation showed a continuing progressive and increasing distress in the youngster but qualitatively no different than at the first session. The discomforting, distressing, disquieting, anxiety-producing figure to Darren was the mother. His opinion, that other things being equal, the child would be better off with the father, did not change.

Dr. Arbit saw Jessica first on the same morning of April 25, 1977, and followed similar procedures in evaluating her as were used in evaluating Darren except for omitting some tasks because of her younger age, notably the Michigan Picture Tests. The primary result most noticeable psychologically was the significant difficulty Jessica had in viewing herself as a young girl and as a potential woman, not necessarily in the sexual sense, but in terms of non-sexual structures. She seemed distressed about having to identify herself as a young woman and potential adult female. In his opinion there were developing some insipient qualities relating to a depressive process with a negative self-concept and with some failure at identification that would have established herself in her own mind psychologically as a young woman. The features he noted in the sense of disturbances were related to mother-daughter relationships. He concluded that the best interests of the child would be in living with the father. He again saw Jessica in October of 1977 and administered the Blackie Test which resulted in findings very similar to his earlier conclusions with what now seemed to be a more progressive depressive development related to the mother. He would recommend that both children receive the professional help of a child psychologist or psychiatrist.

Dr. Arbit spoke with Jenny Lee a month after his initial examination of the children, and before his last examination, for the purpose of interviewing someone aside from the children's parents who might have information, awareness, feelings or thoughts which might supplement the initial evaluation that he made. His ...


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