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In Re Estate of Brown





APPEAL from the Circuit Court of Crawford County; the Hon. ROBERT W. WHITMER, Judge, presiding.


This is an action to modify custody of three-year-old Janet Marie Weger. Her mother died within a week of Janet's birth. Leslie Weger, Janet's father, placed the child with his sister, Eva Purcell, and initiated proceedings to have Eva named guardian of Janet. Leslie remarried some time later and sought to have the guardianship terminated and custody of Janet returned to him. The trial court ordered the child returned and the guardianship terminated. Eva Purcell appeals from that order.

The issue before this court is: was it against the manifest weight of the evidence to modify custody and terminate the guardianship?

Janet Weger was born February 25, 1978, to Leslie Weger and Harriett Irene Weger. Harriett was Leslie's second wife, his first marriage having ended in divorce. Shortly after Janet was born, Harriett died of cancer of the liver. Janet was small and sickly. She weighed only five pounds and two ounces at birth and stayed in the hospital three weeks. When she was first released from the hospital Janet required feeding every two hours around the clock.

Upon her discharge from the hospital Janet went to live with her aunt, Eva Purcell, by arrangement of her father. Eva and her husband, Robert, have five children, two of whom are still minors and living at home with Janet. Janet has three older siblings: Randall A. Brown, Robert L. Weger, and Deborah L. Parker. They stayed with Leslie. On May 25, 1978, Leslie Weger filed a petition for guardianship, nominating Eva Purcell to be guardian of the person and estate of all four children. Eva was appointed guardian on June 20, 1978. Janet continued to live with Eva, while the other three children continued to live with Leslie.

On August 25, 1978, Leslie remarried. His new wife was Nancy Ruth Weger. She had children of her own and they moved in with Leslie's three. On March 7, 1979, Leslie filed a petition to terminate the guardianship, stating that he had remarried and wished Janet to be returned to him. The petition did not allege any wrong-doing on the part of Eva pursuant to section 23-2 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 23-2), regarding removal of representatives.

A motion for summary judgment for the plaintiff was heard and denied July 13, 1979. Shortly thereafter Leslie was divorced from this third wife. He "courted>" a fourth wife for about five months, and on January 7, 1980, married Nancy Weger. Nancy Weger had three children by a previous marriage. Leslie and the three siblings of Janet moved in to his new wife's home, with her three children. The eight of them visited Janet in January 1980, for a weekend at the Purcell home. They visited again around Easter of 1980.

No action was taken on the case until it was set in June by the judge for a hearing on the petition to terminate on July 24, 1980, more than a year after the denial of the motion for summary judgment. The hearing was delayed because of time conflicts of the judge. Leslie did not visit Janet at all between Easter 1980 and the hearing on the petition on September 18, 1980. Testimony was taken and memoranda of law were submitted to the court. On October 27, 1980, the court entered an order finding both Leslie Weger and Eva Purcell to be fit parents or custodians, and reciting that it was "in the best interest" of Janet to be returned to her natural father. The court ordered that Janet be returned to the custody of Leslie and that the guardianship of all four children be terminated as no longer being needed. Eva Purcell appealed the order and the court stayed the transfer pending the appeal.

The order appointing Eva Purcell guardian of the person and of the estate of Janet confirmed the actual custody which Leslie had given her. The statute describes the duties of the guardian of the person of a minor thus: "Under the direction of the court: (a) The guardian of the person shall have the custody, nurture and tuition and shall provide education of the ward * * *." (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11-13.) The guardianship order is a custody judgment among other things.

The petition to appoint Eva could have been filed under the custody provisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1979, ch. 40, par. 601(b)(1) or (2)). The Act became effective October 1, 1977, and the petition was not filed until May 25, 1978. The provisions of IMDMA, including the criteria the court could use in settling contested custody cases, are more suited to the facts of this case than are the provisions of the Probate Act of 1975 with its stress on the property of minors and incompetents for whom guardians have been named.

The section of the IMDMA which deals with modification of custody is section 610 (Ill. Rev. Stat. 1979, ch. 40, par. 610). The Supreme Court of Illinois has pointed out that the legislature, in section 610, has introduced a presumption in favor of the existing custodian.

"By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child's custodial and environmental relationships which is not to be lightly overturned." (In re Custody of Harne (1979), 77 Ill.2d 414, 421, 396 N.E.2d 499, 502.)

During the first two years of a custody placement that presumption is extremely difficult to overcome. A party must file affidavits as to serious danger to the child before the court will entertain a motion to modify at all. Ill. Rev. Stat. 1979, ch. 40, par. 610(a).

No such affidavits were filed in connection with Leslie's petition to terminate guardianship and transfer custody. However, the petition was not heard until more than two years had elapsed from the time of the guardianship order. ...

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