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People Ex Rel. Bukovic v. Smith





APPEAL from the Circuit Court of Cook County; the Hon. ALLEN F. ROSIN, Judge, presiding.


James and Lecta Smith, paternal grandparents (hereinafter grandparents or Smiths), appeal from an order entered November 25, 1980, denying their petition for custody of their grandchildren, Anthony and Matthew, now ages 10 and 7 respectively, and requiring the Smiths to return the children to their natural mother, Barbara Bukovic (hereinafter mother or petitioner). Custody of the children had originally been awarded to the mother under a "judgment for divorce" entered July 15, 1977. The children have lived with the grandparents since approximately September 1, 1977. The issues presented for review are whether: (1) the criteria of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)) (hereinafter Act) apply to the grandparents' petition for custody; (2) the relevant factors of section 602 of the Act were considered by the trial court; (3) the mother consented to the integration of the children into the grandparents' family; and (4) the trial court's decision that it was in the children's best interests to be returned to the mother was contrary to the manifest weight of the evidence. We affirm for the reasons which follow.

The mother married her present husband, Robert Bukovic, on June 30, 1979. She filed a verified petition for writ of habeas corpus on January 10, 1980, which alleged, inter alia, that: petitioner was the natural mother of Anthony and Matthew, who were detained and wrongfully restrained by the grandparents; the mother had been granted custody of her sons by judgment for divorce entered July 15, 1977; the judgment for divorce was never vacated or modified; and, the mother had the right to custody. Following a hearing, the court below entered an order directing the issuance of a writ of habeas corpus upon the grandparents commanding them to produce the children in court, which was so issued on January 11, 1980.

The grandparents appeared and filed an answer to the petition in addition to their own petition for custody in which they alleged their relationship to Anthony and Matthew, and that: on Labor Day, 1977, the mother brought them to the grandparents' home and asked them to raise the boys; the children have been in the grandparents' custody continuously from September 1977 until the present, a period of 2 1/2 years; and the mother never previously asked respondents to return the children.

On August 15, 1980, a partial hearing was conducted before an extraordinary remedies court, which thereafter transferred the cause to a domestic relations court. The latter court considered the previous transcript evidence and heard evidence from additional witnesses in October and November, 1980. It granted the mother's habeas corpus petition, denied the grandparents' custody petition on November 25, 1980, and denied a rehearing petition on December 15, 1980. This appeal followed.

The evidence adduced at the above-described hearings was as follows. Joyce Scully, of the Illinois Department of Social Services, had investigated both households. She testified that the Bukovics' Sauk Village home contained three bedrooms, including a bedroom for Anthony and Matthew. The household consisted of the Bukovics, Robert Bukovic's daughter from a previous marriage, Leanne, and their nine-month old son, Keith. The infant had been born with a congenital problem for which a public health nurse was needed, but otherwise was well cared for. The nurse had told Scully she was pleased and impressed with the mother's care of the child and felt she was a good mother. The grandparents also have a nice home. The children have their own room, and there is a large yard with a sandbox, tree and swings. Both boys were clean, neat and articulate. They have "all of the things little boys like * * *, a backyard, two little girl cousins next door that they can play with, a sandbox, flowers * * * good relationships with their Sunday school teacher, schoolteachers, a warm atmosphere * * * although it is a little tense when they talk about their mom." She stated there might have been some prejudice implanted against the mother by the grandparents, since Anthony quoted his grandparents about her. Matthew stated he wanted to see his mother more often.

Scully was of the opinion that petitioner is a good mother to her infant, and to Leanne, and is capable of being a good mother to her sons. Because of the past Scully had some reservations about her. The mother told her that she had not been as good a mother as she could have been, but had been very depressed. Counseling had helped, and she believes she has changed. Robert Bukovic was previously married, is hard working, likes children, and is a loving father. Scully had not seen him with the boys. Scully believed that although currently the mother is doing a wonderful job with her family, she should not have custody at this time, since "her change has only been for about two years" and because it would be unfair to uproot the boys from their grandparents. She thought, however, that it would be almost ideal if they could spend four days a week with the Bukovics, and weekends with the Smiths. She also recommended a reevaluation in one year and that if the mother continued her progress she would be ready to resume full custody.

The mother testified. She is 28 years old. She took care of Anthony from his birth in 1971 until 1977 and of Matthew from his birth in 1974 to 1977. In January, 1977, while married to James Smith, she was involved in an automobile accident as a result of which she suffered injuries to the head, leg and neck. She did not work for 2 1/2 months. Following her divorce in March, 1977, she began to feel "rundown" and increasingly dizzy and weak. On Labor Day of 1977, she asked the grandparents for help with the boys until she could get back on her feet. They agreed to take the children. Between September and December of 1977 the mother was hospitalized twice but was able to contact the boys by phone. After her release from the hospital in December, she wanted the boys with her, but the grandmother suggested they finish the school year (until June, 1978), and she agreed. She continued to see the boys a few times each week. Following June 1978, when she again broached the subject of taking the boys back, the grandparents stated she was confusing the boys by contacting them. During the summer of 1978 they refused to let her speak to or see the boys more than once. She was told they were not home, or were busy. In August 1978, she again stated she wanted the boys, and the grandparents responded that it would be unfair to the boys to disrupt them. In September of 1978, the mother met her present husband and she began to live with him in November of 1978. Thereafter, except for a Christmas visit, the grandparents would not let her take her sons until she was married in June 1979. After encountering more resistance to her regaining the children, the mother contacted her attorney in July, 1979. At that time she was in her fifth month of pregnancy. She and her attorney decided that it would be best to wait until after the pregnancy terminated to pursue this cause.

Elizabeth Carrol, a public health nurse, helped the mother with the care of her baby, Keith, who had a congenital medical problem. She testified that petitioner is an excellent mother, although she did not observe her with Anthony and Matthew.

Robert Bukovic, petitioner's husband, has been a supervisor for Amtrak for six years, after having worked 16 years for the Santa Fe Railroad. His present marriage is his fourth; he has been widowed once and divorced twice. He plans to adopt the children if he has the opportunity, although he has not talked with them about it. To him the only things unusual about the boys were that they seemed withdrawn at first and were untutored in children's activities, such as baseball and swimming. He did not know what school Anthony now attends or in what school activities he participates.

George Martin Popelka, principal of McCord School, attended by both children, testified that their attendance, grades and conduct are satisfactory. Ronald Aulger, pastor of the First Baptist Church of Burbank, testified that both children are very involved in church activities. Evelyn Ledder, who lives across the street from the grandparents testified they are a close family, loving, good neighbors and good parents. Phyllis Dezre-Maux, the grandparents' daughter and neighbor, testified the boys were well-adjusted, and that they have both told her that they would rather stay with the grandparents on weekends than visit their mother, as the visits upset their routine.

Lecta Smith, the children's grandmother, testified that she is 59 years old, has been married 32 years, raised six children, and is in good health. She does not work outside the home. She and the mother have always been close, and since their birth she has seen and taken care of the children once a week, sometimes for a day or two. On Labor Day, 1977, the mother asked the Smiths if they would raise the boys. Since that time she has seen after the children's day to day needs, attended school conferences, and has taken them camping, horseback riding, sightseeing, and on family vacations. She contended that the mother never asked for the boys back until this action was initiated and never objected to the way the children were being raised. She admitted that the mother called to check on the children in 1977 and 1978 but stated that she was out of contact for five months in the latter part of 1979. She denied ever having prevented her from visiting her children except when she was living out of wedlock with Bukovic.

James A. Smith, the children's grandfather, testified that he is 58 years old and in good health. He is a self-employed mechanic. The boys have never lived any place for more than a couple of months before they came to live with the Smiths. Further, before Anthony came to live with them he had been absent from school for 70 days and had failed kindergarten. The children wanted to stay with them. Anthony had been left with Phyllis, his daughter, to raise when he was a nursing baby and has been bounced back and forth since then. Their father lives nearby. He does not approve of things the mother does, like making false accusations. He would prefer that she not have any visitation rights because of her life-style. He denied speaking against the boys' mother, and stated that in implying that he had the caseworker, Scully, was distorting the truth and putting words in the little ones' mouths.

The court below found that petitioner had never agreed to leave the children in the permanent custody of the grandparents. Thus, the children were never integrated into the Smith family with the consent of the mother, as required to modify custody under section 610 of the Act. The court declared that both households were good, but was concerned that the grandparents had not been "fostering a feeling of warmth" in the children for their mother, and had never told the children that their mother would be coming back for them. Thereafter, the court determined it was in the children's best interest to be in the mother's custody, denied the grandparents' counterpetition for modification and ordered the children returned to their mother. So as not to tear the children away from their present ...

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