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In Re Marriage of Gebis

OPINION FILED SEPTEMBER 30, 1981.

IN RE MARRIAGE OF DEBORAH GEBIS, RESPONDENT-APPELLANT, AND GARY GEBIS, PETITIONER-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. MONICA REYNOLDS, Judge, presiding.

MR. PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Petitioner, Gary Gebis, filed a petition to obtain custody of his two minor children from respondent, Deborah Gebis. After hearing evidence in support of the petition, the trial court awarded temporary custody to petitioner without prejudice to the rights of respondent. After all of the evidence had been presented by both parties, the trial court transferred permanent custody of the two children to petitioner. We reverse.

The parties were married on September 3, 1972. Two children were born during the marriage. William was born on July 28, 1973, and Gary was born on February 7, 1975. On December 18, 1978, a judgment of dissolution of marriage was entered. Pursuant to a settlement agreement which was incorporated in the judgment, respondent was given custody of the two minor children subject to the visitation rights of petitioner.

On December 27, 1979, petitioner filed a petition in which he requested temporary custody of the children until a full hearing could be held and permanent custody at the conclusion of a full hearing. In the petition, he alleged that the custodial arrangement seriously endangered the children's physical, mental, moral and emotional health and that it would be in the best interest of the children to reside with petitioner and his new wife.

At the conclusion of the hearing, the trial court entered an order transferring permanent custody of the two children to petitioner. The court found that the testimony of Michelle Cimino, director of a nursery school, as to the clothing and hygienic condition of Gary, respondent's inaction as it related to William's speech problem and the other evidence submitted at the hearing showed that the children's present environment seriously endangered their physical, moral and emotional health. The court further found that there had been a substantial change of circumstances relative to the welfare of the children, and that it would be in the best interest of the children to have permanent custody transferred to petitioner. The court ordered that respondent was to have the same visitation rights which respondent had been given in the judgment for dissolution of the marriage.

Respondent contends that the order of the trial court transferring custody of the children to petitioner is against the manifest weight of the evidence. She argues that the evidence does not support a finding that the children's environment seriously endangered their physical, mental, moral or emotional health.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act is relevant here. It provides:

"(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:

(1) the custodian agrees to the modification;

(2) the child has been integrated into the family of the petitioner with consent of the custodian; or

(3) the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him."

Ill. Rev. Stat. 1979, ch. 40, par. 610(b).

Petitioner has the burden of proof (Applegate v. Applegate (1980), 80 Ill. App.3d 81, 84, 399 N.E.2d 330, 333) and must satisfy one of the three prerequisites under section 610(b) before the court proceeds to consider the best interest of the children under section 602(a) of the Act. (In re Marriage of Gargus (1981), 97 Ill. App.3d 598, 605-06, 423 N.E.2d 193, 198; In re Marriage of Batchelor (1980), 89 Ill. App.3d 781, 784, 412 N.E.2d 49, 52; In re Custody of Nodot (1980), 81 Ill. App.3d 883, 891, 401 N.E.2d 1189, 1195.) In this regard, section 610(b) reflects an underlying policy favoring the finality of child custody judgments. By creating a presumption in favor of the custodian appointed pursuant to the prior judgment, the legislature has sought to promote stability and continuity in the child's custodial and environmental relationship which is not to be lightly overturned. In re Custody of Harne (1979), 77 Ill.2d 414, 420-21, 396 N.E.2d 499, 502; In re Marriage of Gunter (1981), 93 Ill. App.3d 1043, 1048, 418 N.E.2d 149, 153.

Here, we agree with respondent that petitioner has failed to satisfy subsection (b)(3), the applicable subsection in the case. The evidence fails to support a finding that the children's environment seriously endangered their physical, mental, moral or emotional health. The incidents cited by petitioner, taken alone or together, do not ...


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