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In Re Custody of Blonsky

OPINION FILED MAY 8, 1980.

IN RE CUSTODY OF MICHAEL HASKINS BLONSKY. — (KATHERINE HASKINS BLONSKY, PLAINTIFF-APPELLANT,

v.

HOWARD MICHAEL BLONSKY, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. W. CHARLES WITTE, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

This case concerns the custody of a minor child, Michael Haskins Blonsky, age 5. His parents, Katherine Haskins Blonsky and Howard Michael Blonsky, were divorced pursuant to a final judgment of dissolution of marriage entered May 10, 1977, in California. That judgment incorporated provisions from an interlocutory judgment of dissolution of marriage entered January 31, 1977, which granted custody to each parent for six months of the year. On May 4, 1979, plaintiff commenced this action by filing a complaint for enrollment of the California divorce judgment so as to permit modification of its custody provisions. She subsequently filed a petition to modify the custody provision of the California judgment so as to grant her custody of Michael, alleging that Michael was beginning school in September 1979, this represented a change in circumstances authorizing the court to modify custody, and it would be in Michael's best interest to grant her sole custody. In his answer defendant agreed that the onset of Michael's first school year necessitated a change in the custody provision, but he further alleged that plaintiff was unfit to assume full custody, he was fit, and accordingly sought a modification granting him custody of Michael for each school year, with custody during summer vacations going to plaintiff. Following a full hearing on the issue the trial court entered an order modifying the prior custody disposition so as to grant physical custody for the period of Michael's school term to defendant, with custody for most of the summer going to plaintiff.

On appeal plaintiff and Michael, by the attorney appointed to represent him during the proceedings, seek reversal and remand for a new hearing based on the following contentions: (1) the trial court in its order failed to make findings required by law before a prior custody judgment is modified; (2) the decision was contrary to the manifest weight of the evidence; (3) the decision was based on improper, prejudicial evidence relating to matters occurring prior to the entry of the California judgment sought to be modified; (4) the trial court in its decision failed to utilize factors statutorily established as relating to the best interest of the child; (5) the trial court improperly considered factors not affecting the relationship of the child to the proposed custodian.

We affirm the judgment of the trial court.

The trial court heard the testimony of plaintiff, defendant, plaintiff's mother, and two psychiatrists. We summarize the relevant evidence.

At the time of trial plaintiff testified that she was supported by her mother and two adult brothers with whom she lived in a five-bedroom home in Chicago. Her mother and brothers were employed full-time and she maintained the household, preparing most meals, doing the laundry and shopping, and caring for Michael in the periods he stayed with her. Michael was well adjusted to this environment and got along well with the neighborhood children. Plaintiff believed she would be the better custodian for Michael because she could care for him full-time, whereas defendant, who was employed all school year, would have to utilize the services of a babysitter or day-care center. Although in her petition she had requested sole custody, at trial she requested substantially the same division sought by the defendant except that she would have the school period.

Plaintiff testified that she was in good health, was not under a doctor's care, and suffered from no illness which would impair her ability to care for Michael. In 1968, following the suicide of her brother, she was treated for depression by a psychiatrist. By 1969 she had fully recovered. In 1976 plaintiff again experienced emotional difficulties. She had undergone two unsuccessful operations for severe injuries sustained in childbirth. Her father was critically ill, she had lost her job, and her marriage was, by her description, a "disaster." In February she left her home, taking Michael without telling her husband or packing any clothing. She travelled to Chicago where she told members of her family she thought the world would end by Easter and she would be the first to die. She was voluntarily hospitalized for these emotional problems from March 26, 1976, until April 30, 1976, and was under a psychiatrist's care for that period. In March of that year she wrote to her husband and told him she had baptized Michael as a Catholic in January at a time when she thought she was going to die. Later that year she again wrote defendant asking him to raise Michael to be a Catholic if anything happened to her. Prior to their marriage they had agreed they would expose their children to all major religions. At trial plaintiff stated that she personally had baptised Michael in his bedroom.

Plaintiff returned home with Michael in May 1976 but left within 24 hours for Chicago, leaving Michael with defendant. In Chicago her parents urged her to again see a psychiatrist but she refused. She returned to San Francisco with an individual she met in Chicago, staying with that person in San Francisco for about a month. During that period she attempted suicide. Defendant came to where she was then staying and accompanied her to a psychiatrist. In September 1976 plaintiff returned to her family home in Chicago and lived there until the time of the hearing. Defendant had indicated his belief that the marriage was over and she thought she could help her family as her father was in intensive care in the hospital. About a month later, after her father's condition had stabilized, she returned to San Francisco and brought back Michael to Chicago. In December 1977, plaintiff again saw a psychiatrist because of depression. The record of that session indicates that she had experienced hallucinations.

According to plaintiff, during the summer of 1979 Michael had shown some anxiety about his father not reassuring him of future visits to California. However, plaintiff admitted that she failed to read him one portion of a letter from his father in which he wrote of the San Francisco school in which he planned to enroll Michael that fall. Her intention was to place Michael in a private kindergarten that fall and then to enroll him in a Catholic grammar school the next year. She chose that school because of its reputation for excellence, its location two blocks from her home, and the attendance there of many of the neighborhood children. She had met the school's principal briefly but had not viewed any of the classes, nor had she visited the public school which was seven blocks away. The mothers she knew who had children at the public school were satisfied with it. When she had discussed with defendant her intention to place Michael in a Catholic school he threatened not to return Michael to her unless she promised in writing not to do so. She denied having any negative agreement with defendant not to raise their children in one particular religion. However she also stated she did not intend to raise Michael as a Catholic, did not consider herself a practicing Catholic and had not taken Michael to church. Her intention was to expose him to all religions; she did not intend to insist that he be raised in one religion as opposed to another.

Plaintiff's mother testified generally that plaintiff took excellent care of Michael, who seemed well-adjusted, happy and healthy. It was her opinion that plaintiff was extremely well-qualified to care for Michael. She and her sons contributed financially to the household and, with this money as well as the support payments of the defendant, they were able to adequately care for Michael.

Dr. Bernard Shulman, chairman of psychiatry at St. Joseph's Hospital in Chicago, testified for plaintiff whom he had examined the day before trial commenced. On the basis of this examination as well as a history of her prior psychiatric disorder, including hospital records of her psychiatric treatment, he concluded that she was suffering no psychiatric disorder at the time he examined her. However, her history indicated she had had breakdowns in 1967 and 1976. Her 1976 condition apparently was reactive schizophrenia, a condition brought on by extreme stress. Recovery occurs when the stress is ended. In the absence of such severe stress in the future he was confident she would not break down. Dr. Shulman found no reason why plaintiff should not have custody of her son.

Defendant presented the testimony of Dr. Henry Stipes, a psychiatrist employed by the Psychiatric Institute of the Cook County Circuit Court. He too had examined plaintiff and had reviewed her medical records. He concluded that in 1976 she had suffered a severe reactive psychotic episode due to stress. He defined this condition as a period of time when a person loses contact with reality due to severe stress in their life. In plaintiff's case this stress included recent loss of a job, a severely ill father, marital problems, and a surgical condition which she had difficulty getting treated properly. Her reaction to this stress was rare; only about one percent of the population would develop a psychosis from such stress.

At the time of trial Dr. Stipes believed that plaintiff was not suffering from any mental illness and he found nothing to preclude her from receiving custody of a five-year-old child. However, he also believed that recurrence of stress as severe as she had previously experienced would quite likely cause another psychosis. He found her to behave in somewhat rigid and compulsive ways and also found her to have a limited capacity to deal with stress. Without the emotional support or availability of her family or of similar people he believed it would be very difficult for her to cope with the routine stress of life.

Defendant also testified at trial. He had obtained a master's degree in social work at the University of Iowa and was employed in San Francisco as a school social worker, making approximately $21,000 a year. He also served as coordinating counsel of the San Francisco Delinquency Prevention Commission and was on the steering committee of the San Francisco Celebration of the Year of the Child Task Force. He lived in a two-bedroom home in a middle-class neighborhood of San Francisco near the Pacific Ocean.

Defendant prepared all of Michael's meals during his custodial periods. During these periods he had toilet trained Michael and had weaned him from the use of a bottle. Michael had many friends in the neighborhood. The school in which defendant intended to enroll Michael, located one block from their home, would be over at 12:30 each day. Accordingly, defendant had developed three options for afternoon care: a licensed day-care home, a babysitter, or a nonsectarian recreation center run by a Jewish organization. If plaintiff objected to the latter option defendant would pick one of the others. Defendant believed that plaintiff's emotional condition was still "borderline" and she was not fit to assume full custody of Michael.

Defendant testified that he had been seeing a divorced woman with children of her own for three years. About two times a month she would stay overnight with defendant. He had had sexual relations with her. Michael had a good relationship with this woman and with her children. Defendant had explained to him that he and the woman had a very close relationship, helped each other, enjoyed being together, and that adults did on occasion sleep together in the same bed. Defendant ...


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