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In Re Custody of Switalla





APPEAL from the Circuit Court of McDonough County; the Hon. WILLIAM L. RANDOLPH, Judge, presiding.


James Robert Switalla appeals from a judgment of the Circuit Court of McDonough County awarding custody of his three sons to their mother, Vera Switalla, upon the dissolution of the marriage of Mr. and Mrs. Switalla. Mr. Switalla's sole contention on appeal is that the court awarded custody to the mother of the children based upon the so-called "tender years doctrine," in contravention of Illinois case law and the State and Federal constitutions, and thus failed to follow the statutory mandate of our Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) that a court determine custody in accordance with the best interest of the child, considering all relevant factors, including those set out in section 602(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)).

James and Vera Switalla were married for 13 years. They have three sons, Paul, aged 9 at the time of the judgment at issue, Scott, aged 7, and Craig, aged 6. The couple spent the first half of their married life in Chicago and the second half in Bushnell, where they operated a motel. According to Mrs. Switalla, marital discord developed over Mr. Switalla's employment at two jobs and his resulting inability to spend sufficient time with the family. They attempted to remedy the situation by moving to Bushnell and operating a family business, the MRK motel, at which they resided. Mr. Switalla operated the motel, completed his college education, and took a second job as a feed salesman. Mrs. Switalla began her college education and helped in the operation of the motel. Mrs. Switalla filed a petition for dissolution of marriage on the grounds of mental cruelty. She complained that Mr. Switalla was uncommunicative, rigid, and domineering. Mr. Switalla contested the complaint, maintaining that the source of their marital troubles was Mrs. Switalla's newly found intellectual interests. He did not counterpetition, apparently believing the marriage could be saved.

After a lengthy hearing, grounds for dissolution were found to exist on May 3, 1979. Temporary custody of the three children was vested in Mrs. Switalla. At that time the court stated:

"* * * I am well aware that we don't in Illinois have a so-called tender years doctrine, what at one time, as I understood it, presumed the children of tender years should be placed in the custody of their mother unless there is some strong showing to the contrary, but I do feel, as a temporary basis, the best interest of these children require that they be placed temporarily in the custody of their mother, who, as I have indicated, will be given possession, under the statute I previously referred to, of the residence premises at the MRK Motel."

In arriving at this temporary judgment, the court considered the wishes of the parents, the wishes of the children (who expressed no preference), the "interrelationship of the children and their parents with each other," and the fact that, by remaining at the motel, the children would enjoy a continuity of environment.

Until the final order was delivered, Mr. Switalla continued to reside at the motel, in a guest room near, but not within, the family residence. He visited with the children daily.

Prior to the final hearing, counsel was appointed to represent the children. At the final hearing, on September 19, 1979, the children's only witness was Dr. Mona Johnston, a psychologist, who testified hypothetically. She stated that children, when placed under the stress of their parents' marital breakup, tend to grow more emotionally dependent upon one another. She also stated that, upon a marital breakup, children should be placed with the "psychological parent." The court questioned Dr. Johnston about the concept of "bonding" between the parent and child, which she referred to in her testimony. In response to questioning by the court, Dr. Johnston stated that this bonding occurred within a few weeks of birth. The court asked if that meant, given "the way we live today," that bonding "normally" occurred between the child and its mother. Dr. Johnston replied by stating that, in a cohesive household, the children get bonded to both parents.

The court stated that it had heard, from other experts, that the male role model became important to a child after about the age of 10 to 12, but prior to that time, the female influence was more important. The court added that it did not know this view to be correct, but that it had heard it stated. Dr. Johnston replied that this was an incomplete piece of information; that both parents have much to contribute to the child at all phases of its development. The court then asked if, all other facts being neutral, the masculinity or femininity of a parent was an important factor in determining the better custodian. Dr. Johnston replied only that the psychological parent is the proper one to receive custody. The appellant argues that the court demonstrated, through this questioning, its predisposition to award children of tender years to their mother. We do not conclude this colloquy demonstrated any inflexible presumption. The court did not badger the witness and seemed open to her statements. The court was, indeed, looking for an answer to its question, and simply stated the view it had heard from other experts. However, the court also stated that it did not know this view to be correct and appeared open to the testimony of Dr. Johnston. It should be noted that Dr. Johnston at no time testified about the actual psychic state of the Switalla household. It is apparent that her answers were strictly hypothetical and that she had no first-hand knowledge of any of the children or either of the parents. She offered no opinion as to who the "psychological parent" was in this case. Nor did her testimony discredit the possibility that there might be two psychological parents in this case.

After this hearing, the court awarded permanent custody of the three children to Mrs. Switalla. The court found that Mr. and Mrs. Switalla were both not only fit, but exemplary parents.

The appellant, Mr. Switalla, calls attention to the following remark by the court in its address from the bench:

"Illinois does not strictly and religiously adhere to what sometimes is referred to as the doctrine whereby the mother is presumed to be the ideal parent for minor children. However, the Courts> of Illinois do, and in many cases have, including some fairly recent cases, acknowledge the fact that generally where there are children of tender years, and I refer to the so-called tender years doctrine, the mother normally is in a better position to provide the needs of those children due to their tender years. Not that she is per se a better parent at all times and places, and I think we noted from the testimony in the instant case that teachers in school customarily contact the mother about school work, that the mother was normally the one that came to school for school conferences, and whether we like it or not there are certain things in this world, and I wouldn't purport to say that they are inherited traits, let's say that they are simply the roles that people have historically played, but there are certain areas, and the evidence in this case shows it, where the mother is more directly and expressly involved and other areas where the father contributes more. But I think in view of the tender years of these children, I am going to say that clearly because that is primarily what I am resting my decision on, I feel that the custody should be placed with their mother."

When asked by Mr. Switalla's counsel for further clarification of the basis for its decision, the court replied:

"I will tell you quite frankly the strongest consideration in this case to me, as I tried to indicate, is what sometimes is referred to as the tender years doctrine. I don't apply it arbitrarily; I realize that in a given situation a father might supply the needs of the so-called tender years consideration better than a mother. I am not arbitrary about it but I think particularly here the evidence of the case I simply feel that with children this age that both parents have a great deal to contribute. I feel that the mother, and particularly what I have heard of the evidence, is in a more sensitive position at this particular age and, as I ...

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