Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Marion E. Burks, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1980.
On December 6, 1976, Jacqueline Jarrett received a divorce from Walter Jarrett in the circuit court of Cook County on grounds of extreme and repeated mental cruelty. The divorce decree, by agreement, also awarded Jacqueline custody of the three Jarrett children subject to the father's right of visitation at reasonable times. Seven months later, alleging changed conditions, Walter petitioned the circuit court to modify the divorce decree and award him custody of the children. The circuit court granted his petition subject to the mother's right of visitation at reasonable times, but a majority of the appellate court reversed (64 Ill. App.3d 932), and we granted leave to appeal.
During their marriage, Walter and Jacqueline had three daughters, who, at the time of the divorce, were 12, 10 and 7 years old. In addition to custody of the children, the divorce decree also awarded Jacqueline the use of the family home, and child support; Walter received visitation rights at all reasonable times and usually had the children from Saturday evening to Sunday evening. In April 1977, five months after the divorce, Jacqueline informed Walter that she planned to have her boyfriend, Wayne Hammon, move into the family home with her. Walter protested, but Hammon moved in on May 1, 1977. Jacqueline and Hammon thereafter cohabited in the Jarrett home but did not marry.
The children, who were not "overly enthused" when they first learned that Hammon would move into the family home with them, asked Jacqueline if she intended to marry Hammon, but Jacqueline responded that she did not know. At the modification hearing Jacqueline testified that she did not want to remarry because it was too soon after her divorce; because she did not believe that a marriage license makes a relationship; and because the divorce decree required her to sell the family home within six months after remarriage. She did not want to sell the house because the children did not want to move and she could not afford to do so. Jacqueline explained to the children that some people thought it was wrong for an unmarried man and woman to live together but she thought that what mattered was that they loved each other. Jacqueline testified that she told some neighbors that Hammon would move in with her but that she had not received any adverse comments. Jacqueline further testified that the children seemed to develop an affectionate relationship with Hammon, who played with them, helped them with their homework, and verbally disciplined them. Both Jacqueline and Hammon testified at the hearing that they did not at that time have any plans to marry. In oral argument before this court Jacqueline's counsel conceded that she and Hammon were still living together unmarried.
Walter Jarrett testified that he thought Jacqueline's living arrangements created a moral environment which was not a proper one in which to raise three young girls. He also testified that the children were always clean, healthy, well dressed and well nourished when he picked them up, and that when he talked with his oldest daughter, Kathleen, she did not object to Jacqueline's living arrangement.
The circuit court found that it was "necessary for the moral and spiritual well-being and development" of the children that Walter receive custody. In reversing, the appellate court reasoned that the record did not reveal any negative effects on the children caused by Jacqueline's cohabitation with Hammon, and that the circuit court had not found Jacqueline unfit. It declined to consider potential future harmful effects of the cohabitation on the children. 64 Ill. App.3d 932, 937.
Both parties to this litigation have relied on sections 602 and 610 of the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 602, 610), which provide:
"Sec. 602. Best interest of child.
(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 ...