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In Re Custody of Nodot





APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.


Mary Varick Nodot (hereinafter the mother) appeals from the trial court's order granting the counterpetition of Guy Andre Nodot (hereinafter the father) for change of custody of their minor daughter, Jennifer Lynn, from the mother to himself. We affirm, for reasons which follow.

The mother, an American citizen, and the father, a French citizen, were married on April 5, 1971, at Loches, France. On June 19, 1975, while residing in Evanston, Illinois, their daughter Jennifer was born. The mother and father were divorced by a decree entered by the circuit court of Cook County on September 27, 1977, on petition of the mother, who was granted custody of Jennifer. On April 24, 1978, the mother filed a sworn petition to remove Jennifer, then two years old, from Illinois, giving as reasons that she planned to marry a French citizen *fn1 studying in Chicago who had a job waiting "* * * for him in Singapore, and other opportunities in Europe." She was desirous of leaving Illinois to marry in France and "* * * reside with her new husband in Singapore or any other location where he [might] obtain employment," and of having her child reside with her and her new husband. The removal sought was alleged to be in Jennifer's best interests because it would provide a "two parent environment," improve her financial position and opportunities for travel and education, and expose her to the mother's new inlaws and their families and thus expand her family circle. The mother acknowledged the need to alter visitation arrangements for the father and agreed to keep him advised of Jennifer's location, health and progress. The father's answer to the petition denied that removal would be in Jennifer's best interests, alleged to the contrary that it would seriously endanger her mental and physical health, and asserted that it would be a grave detriment to her to see the father only on rare occasions.

The father also filed a counterpetition for change of custody on May 12, 1978, the same day as the answer was filed. It alleged that the mother had been employed on a full-time basis since entry of the divorce judgment and prior thereto, and since April 30, 1976, Jennifer had been in the care of Mrs. Pauline Rapp at an Evanston day care center approved by the Illinois Department of Children and Family Services from 8:15 a.m. to 5 p.m. for five days per week, thus reducing the time of the mother's involvement with the child to a few hours each day. The father worked as an architect in Winnetka and visited Jennifer at the day care center during the week. In addition, he saw her on 24-hour weekend visits and one night every other week. At the day-care center Mrs. Rapp provided a consistently stable environment for Jennifer conducive to her proper development, which the father would continue to maintain if granted custody. He resided "with a family where there are 2 young children" with which Jennifer had become close during the aforesaid visitation periods. If removal were allowed on the mother's terms, the new and constantly changing environment to which Jennifer would be exposed would seriously and irreparably endanger her mental, moral, physical and emotional health and be devastating to her future well-being. By contrast, if the father were given custody, she would remain in the daytime care of Mrs. Rapp and reside with a family in which she had become "integrated." The mother's remarriage and her intention to leave the country with her new husband were alleged to be the statutory change of circumstances since entry of the custodial order which would allow for modification.

The mother's answer to the counterpetition was filed on June 8, 1978, and contained denials of its material allegations. On June 19, the father filed a motion for an injunction to restrain the mother from removing Jennifer, alleging that she had advised him she intended to go to France with the child in early August and would not return, and that he believed she planned to do so without submitting to a hearing on the custody issue. The mother filed another petition on July 6, 1978, stating that she had remarried and wished to take Jennifer to France on or about August 15, 1978, to visit her new husband's family, subsequently leaving to reside in Indonesia with her new husband, who was to be employed there. She was fearful that the court would not have an opportunity to rule on the petition prior to her planned departure date, and prayed for permission to remove the child temporarily without bond subject to return for the hearing. Although set for hearing on July 26, no ruling on the July 6 petition appears of record.

The mother's petition for removal and the father's for change of custody were heard together on August 29 and 30, 1978. In passing we note that greater clarity could have been achieved in this case had the trial court conducted the proceedings in bifurcated hearings upon the two issues thus presented. Immediately prior to the taking of evidence the father submitted an affidavit in support of his counterpetition "* * * to comply with the new * * * dissolution act," reiterating the major allegations contained in his counterpetition and emphasizing that the mother had given "* * * secondary priority to the child in terms of her interests and activities with the result that the child had lacked the maternal attention as might reasonably be expected for a child of such tender years." He submitted that her proposal to permanently remove the child was an example of her placing Jennifer's welfare after the satisfaction of her own desire for travel and adventure, and that her recent remarriage, having had inadequate time to establish stability, would exacerbate the child's insecurity in a new environment.

In his opening statement counsel for the mother reaffirmed that she and her new husband, Bruno Trouille (hereinafter Bruno) were planning to go to Jakarta, Indonesia, incident to Bruno's employment, and two years thereafter to France. Bruno was scheduled to leave for Jakarta the day following the first day of the hearing and therefore testified first. He was employed as a senior field engineer by an international service company and was familiar with Indonesia, having previously spent two years there. He and his family would reside in a six-room, three bedroom house located in a residential suburb where "American standards" of sanitation were maintained. A community of 8,000 non-Indonesians resided in Jakarta, 3600 of whom were American. Indonesia had been a parliamentary democracy since 1945. A military uprising occurred in 1965 during which thousands of Indonesians were killed, and some political unrest was experienced in May of 1977, the time of national elections. Eighty million people reside on the island of Jakarta, making it one of the most densely populated areas in the world. Thirty million of these live "* * * on a less than substantial [sic] level." The rainy season there extended from November through April, resulting in extremely high humidity, averaging about 83 percent. He planned for Jennifer to attend an international school with 1560 students where English was spoken.

Bruno had not applied to any other companies for employment, having "no intention to leave the company" he was working for. On cross-examination, however, he indicated that he "did some investigation" of employment alternatives, but "had no offer" which compared with the earnings and work he was doing for his present company. He had spent time with Jennifer since he had first met the mother, in September of 1977; he had been on vacation with her, disciplined her when necessary and treated her as a daughter. He and the mother had at first intended to be married in France during August of 1978, but married locally in April because "[o]ur lawyer just advised us that it would be better * * *." Bruno acknowledged that his preference was to live in Paris rather than Jakarta, but he had to go to Jakarta first. When he was asked whether, in the event of an adverse ruling by the court on the mother's removal petition, he would seek employment in the United States or go to Jakarta nevertheless, the mother's counsel objected to the question and was sustained.

The mother testified that, pursuant to her new husband's imminent transfer to Jakarta, she had made inquiries about the character and facilities of the International School there. It had a library of 26,000 books, a teacher-student ratio of 1 to 15 and courses were conducted in English. Since her divorce she had been working as a French editor for a publishing company in Glenview, Illinois, with Jennifer having been in the care of Mrs. Pauline Rapp at a small day-care center from 8 a.m. to 5 p.m. five days per week. She did not plan on working in Jakarta, but would remain home with Jennifer. Bruno spent a good deal of time taking care of Jennifer, both alone and in the presence of the mother, who testified that "they really enjoy being together." She was willing to alter visitation arrangements if the court allowed Jennifer's removal, specifically by allowing a long summer vacation period for visitation with the father, and to institute changes in the present child support agreement. Jennifer was "extremely happy and well adjusted." The child's regular contact with the father and daily care of Mrs. Rapp had had a beneficial effect on her development. She initially told the father and alleged in her petition for removal that she and Bruno would be moving to Singapore, rather than Jakarta, because they didn't know until two months before the hearing exactly where Bruno would be assigned. He wanted to go where he would have "the best career possible," but ultimately preferred to live in France "because that is where his family is."

Respondent's exhibit No. 8F was identified by the mother as a letter written in French on March 1, 1978, by herself to the father's parents, with whom she had maintained contact after the divorce. She had written: there is a possibility we will be able to live in Paris, "which would please me very much," and very little chance we will stay in Chicago, because Bruno does not like life in the United States and does not want to stay here; there are very few companies here that would offer him the kind of job that he would want; he wants to live in a foreign country, in Asia or in South America, for five or six years, and then go back to France; and I have always been attracted by the idea of living in a foreign country, although the situation is very complicated because of Jenny. She wrote further:

"* * * I know this will be very hard for Guy, as well as for my family, to be separated from Jenny and to be able to see her once or twice a year. I am sorry to hurt them. But for me there is no choice. I love Bruno and I am happy with him, and I want to marry him, so I have to follow him."

She explained that at the time the letter had been written they thought Bruno's field training would last longer than two years. She had discussed the proposed removal thoroughly with the father when she wrote it. She "knew from Bruno" what the situation was in Singapore regarding schools and other quality-of-life matters.

The evidence deposition of Joy Ogden-Stigger, a caseworker with the Cook County Department of Supportive Services who investigated the households of both parties, was admitted into evidence by stipulation. She interviewed the mother and father in their respective homes and observed Jennifer with Bruno, but did not observe Jennifer in the Winnetka home in the presence of the father and Jane Almquist, in whose home he was then living. When observed in the presence of the mother and Bruno, Jennifer appeared to be very happy, content and well adjusted, and to relate very well to them both. She also appeared to Mrs. Ogden-Stigger to have a good relationship with the father. As to whether Mr. Nodot's place of residence provided a "proper atmosphere" for Jennifer, Mrs. Ogden-Stigger stated: she wasn't sure about the stability of the relationship; the Nodot-Almquist plans to marry were uncertain; she didn't know what the relationship was; and there did not then seem to be a commitment to what would be recognized as a legitimate family. In her personal opinion, as distinguished from her "expert" opinion, children are "better off with a good maternal person." If Jennifer was to have no contact with her father, she suspected it would be harmful; he should have maximum contact with her.

Testifying for the father, Pauline Rapp, a day-care mother licensed by the Illinois Department of Children and Family Services, stated that she took care of Jennifer 8 a.m. to 5 p.m. on weekdays. She seemed to be developing well and normally for a child her age, with good physical and emotional health and ability to deal with other children. A "very close relationship" ...

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