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In Re Marriage of Sweet



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM E. PETERSON, Judge, presiding.


This appeal emanates from a particularly acrimonious custody contest between the natural parents over the only child born of their marriage, since dissolved, and raises procedural as well as substantive issues. For reasons which shall presently appear, the order of June 23, 1981, from which the appeal is taken, must be reversed and the cause remanded for further proceedings.

After four years of marriage, Robert (Robert) and Donna (Donna) White obtained a default divorce on July 7, 1972, upon stipulation between the parties. Donna was to be awarded sole custody of their only child, William (Bill), then age 2 1/2. No evidentiary hearing relating to custody or fitness was then held. Both parties remarried and had children born to their new families. On August 10, 1977, Robert, a career soldier in the United States Army, petitioned for custody of Bill. The petition alleged, inter alia, that Donna and her present husband, David L. Sweet, had no permanent place of residence; lived in a variety of different States and locations; interrupted the lifestyle of Bill; and disrupted his school attendance. The only permanent address provided to Robert by Donna was her mother's address in Posen, Illinois, to which Robert sent monthly child-support remittances.

The trial court directed the Cook County Department of Supportive Services to conduct an investigation and prepare a report on the respective parties, which was done. The report noted interviews with the father, his wife and his mother; set forth allegations of insufficient food, clothing, discipline, education and supervision while Bill was in Donna's custody; concluded that Robert was a responsible father and husband; found no economic or emotional limitation to restrict him from having custody, but noted that no information was available on either the custody mother or her husband.

A letter, addressed to Donna in care of her mother in Posen, Illinois, containing a notice and a copy of the petition for change of custody, was refused. Donna did not respond to the petition for change of custody. On December 15, 1977, the trial court awarded Robert custody and granted him "* * * full right and authority to take physical possession of * * * [Bill] wherever said child may be found." No findings were made by the trial court with respect to section 610(b) of the Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)) in its modification of custody order.

In February of 1978, Robert went to a Fort Mills, South Carolina, school which Bill attended, presented the principal with a copy of the court order, and school authorities brought Bill to him. They went first to Fayetteville, North Carolina, then back to Fort Sheridan, Illinois, and, one month later, on to Karlsruhe, West Germany, where Robert was next stationed. Robert's family consisted of his wife, mother, three children and Bill. They lived in a four-bedroom apartment situated in a government complex. Robert did not notify Donna of Bill's removal, claiming he had no address or telephone number for her.

On February 27, 1979, Donna filed a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) and moved to vacate the December 15, 1977, order on grounds, inter alia, of improper service. Robert denied improper service, claiming that he served Donna with a copy of his petition for change of custody at the same address in Posen, Illinois, to which he had been sending child-support checks. Pursuant to Donna's motion, the court on August 27, 1979, ordered Robert to deliver Bill to O'Hare International Airport on September 15, 1979, for a one-month visitation period.

On September 14, 1979, Robert moved to suspend the operation of the order requiring him to deliver Bill at the airport pending further investigation. In support of this motion, Robert attached a number of letters, identified as exhibits. These included a letter from a pediatrician, an elementary school teacher, the principal at Bill's elementary school in Germany, the clinical director of the Karlsruhe Community Mental Health Service, and the community chaplain. The essences of those communications were that Bill was happy in his environment, and it would be disruptive and not in his best interest to remove him from his present home. A sworn statement by Bill, given to the base adjutant, stated that he got along well with his father and stepmother, with whom he would rather be, and that he was a better student while with them than while he was with his mother.

On September 14, 1979, the trial court denied Robert's motion to suspend the order of August 27, 1979, and ordered that Bill be delivered to O'Hare Airport by September 30, 1979. On October 3, 1979, the court ordered the Cook County Department of Supportive Services to conduct a medical and psychological examination of Bill. On that same day, Bill was presented in court by Robert's attorney and the court interviewed him in camera. Bill stated that he liked living in Germany. His father, Robert, his stepmother and grandmother were nice to him. He wanted to visit with his mother for at least one month.

An evidentiary hearing on the purported section 72 petition was held on November 15, 1979. The hearing developed evidence that: Robert visited Bill at Donna's abode more than once during April of 1977; he did not know where Donna lived at various times from 1971 to 1977, nor street addresses at which she lived while a resident of Black Oak, Indiana, St. Joseph, Illinois, St. Louis, Missouri; and he did not know addresses of Donna's various residences in Chicago. Donna's mother, living in Posen, Illinois, was the contact concerning news of Bill. No change of address was ever requested by Donna. In July of 1977, Robert claimed, he did not know where Donna lived. At the close of Donna's case, the court denied her petition to vacate, but extended her visitation of Bill until further order of court, referring to this procedure as granting "temporary custody" of Bill to Donna. No appeal was taken from this order, entered on February 13, 1980.

On February 22, 1980, Donna petitioned for a change of custody alleging, inter alia, that Bill was "* * * happy in his surroundings, doing well in school and has indicated on numerous occasions that he desires to live with his mother in Posen, Illinois." At an evidentiary hearing held on March 12, 1981, on an amended petition, the court conducted another in camera interview with Bill, who now stated that he wanted to stay with Donna because she is a lot nicer than his stepmother. He did not like "Bob," his father. Since he has been living with his mother, he has called his father "Bob," instead of "dad" as he previously addressed him. He did not want to visit with his father and stepmother. He hated his stay in Germany. His mother and stepfather told him that his grandmother was a prostitute and a bad woman. At this hearing, Donna was "again" awarded temporary custody of Bill until further order of court.

On June 15, 1981, another evidentiary hearing was held on the amended petition. Donna testified that under the 1972 divorce decree Robert was given visitation rights only during the daylight hours in her house and presence, because Robert had homosexual tendencies. *fn1 From the time of her divorce to the present, she traveled a lot, but Bill was always in school during that time. In 1975, she went twice to Robert's house to talk to him because he was not visiting Bill. Robert's house was filthy, his children ran around naked, and when one boy got in front of the television, Robert kicked him in the face. When Bill arrived from Germany he was very skinny, had sores on his hair and body, and was very nervous. Bill said his stepmother had pulled his hair and caused the sores. He did not know how to use toilet paper. On October 17 or 18, 1979, she heard Bill tell her son, David, while they were in the bedroom, to commit an act of fellatio. She realized then that Bill needed psychiatric help and took him to Bremen Youth Commission. Bill's grades in school have improved over the course of time. Her husband was then unemployed and out of work for one year, but was starting his own business.

Bill testified that while in school in Fort Mills, South Carolina, his father, aunt and grandmother, came to pick him up. He went with them first to Chicago and then to Germany, where he lived for 16 months. He shared a bed with Bobby, his stepbrother, who "peed" in his bed every night and occasionally had bowel movements in bed. Sometimes his dad hit him on his rear end. He had scars and welts from a switch used on him by his grandmother while in Germany. After his return to the United States, his paternal grandmother told him that if he had oral sex with David, he would be able to stay with his mom and stepfather. He liked where he was then living, had many friends, and wanted to stay with his mother and stepfather.

Robert's mother, Mae Sutton, testified that she never told Bill to perform oral sex with his half-brother; and never beat him nor did Robert. He had no sores on his head or body. Since October of 1979, Bill had seen his father four times and had not once displayed any fear. On cross-examination she testified that she disciplined Bill sometimes by spanking him with a switch. Bill ...

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