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In Re Marriage of Pease

OPINION FILED MAY 20, 1982.

IN RE MARRIAGE OF LINDA A. PEASE, PETITIONER-APPELLEE, AND JACK E. PEASE, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of McHenry County; the Hon. HASKELL M. PITLUCK, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Respondent, Jack Pease, appeals from an order of the circuit court of McHenry County denying his petition for a change of custody, and from an order awarding petitioner, Linda Pease, prospective attorney fees for the defense of an appeal. Three issues are before us on this appeal. (1) Whether the circuit court abused its discretion in finding that the children were not integrated into respondent's family; (2) whether the circuit court abused its discretion in finding that the children's present environment does not seriously endanger their physical, mental, moral or emotional welfare; and (3) whether the circuit court abused its discretion in awarding petitioner prospective attorney fees for the defense of the appeal. We affirm in part, reverse in part.

• 1 Petitioner contends that the trial court abused its discretion in denying his petition for a change of custody. Child custody matters are within the sound discretion of the trial court. The trial court is in a better position to observe the witnesses and to determine what is in the best interest of the children. The trial court disposition in such matters will not be interfered with unless it is against the manifest weight of the evidence. (In re Custody of Harne (1979), 77 Ill.2d 414, 422, 396 N.E.2d 499, 503; In re Marriage of Batchelor (1980), 89 Ill. App.3d 781, 412 N.E.2d 49.) The trial court is guided by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)), which provides:

"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."

Our supreme court has determined that section 610(b) requires a trial court, before modifying a prior custody judgment, to make an explicit finding that either subsection (1), (2), or (3) of section 610(b) is applicable. (In re Custody of Harne.) Respondent argues that he has proved that subsections (2) and (3) of section 610(b) are applicable, and that the trial court's finding is against the manifest weight of the evidence.

Respondent's contention that his children have been integrated into his family with petitioner's consent is without merit. Respondent argues that the term "integrated" as used in section 610(b)(2) is synonymous with "adjusted" within the meaning contemplated by the legislature. He argues that petitioner consented to his liberal visitations and therefore consented to the integration or "adjustment" of the children into respondent's family. "The consent requirement in section 610(b)(2) is intended to ensure that the custodian acquiesced in the transfer of physical custody (e.g., to discourage non-custodial kidnapping) and the integration into the family of the petitioner, and should be viewed in that narrow context." In re Custody of Burnett (1979), 75 Ill. App.3d 998, 394 N.E.2d 58.

• 2 In the case at bar, the record does not establish that respondent's children have begun to develop a stable and permanent custodial and environmental relationship with respondent's family. Respondent usually has physical custody of the children from Friday afternoon until early Monday morning. The children are with their father for only one-third of the week. This limited period of time does not allow for the children to become integrated into the father's family. Respondent's wife cooks for the two extra children only two days of the week, and she does not have to wash their clothes or attend to their medical needs. Indeed, a major part of the children's lives has not been integrated into respondent's family.

Accordingly, the record establishes that petitioner merely allowed respondent to exercise his visitation rights, and at most, to have temporary custody of the children each weekend.

• 3 Additionally, section 610(b)(2) requires that the custodial parent consent to the children's integration into the non-custodial parent's family. (In re Custody of Burnett.) Petitioner never consented either explicitly or "constructively" to respondent's attempt to integrate the children into his family. (In re Custody of Iverson (1980), 83 Ill. App.3d 493, 404 N.E.2d 411.) Rather, petitioner's acquisition of an injunction enjoining respondent from interfering with the children's custody, demonstrates the opposite. Petitioner's generosity in allowing respondent to exercise more than minimal visitation rights is not consenting to the integration of her children into respondent's family. (In re Custody of Stearns (1980), 84 Ill. App.3d 195, 198, 405 N.E.2d 457, 459.) The case at bar is not distinguishable from Stearns. In Stearns, the mother allowed her son to remain with his father because the town in which his father lived had a tackle football team, while the boy's mother's town did not. However, the court noted that the mother was generous with regard to visitation even prior to when the circumstances involving the tackle football team arose. As in Stearns, petitioner's generosity toward respondent and the children should not be interpreted as a relinquishment of her custodial rights. Thus, respondent did not consent to her children's integration into respondent's household.

The second issue before us is to determine whether the trial court abused its discretion in finding that the children's present environment does not seriously endanger their physical, mental, moral or emotional welfare.

Defendant contends that the children's present environment seriously endangers their physical, mental, moral and emotional welfare, and that the harm likely to be caused by a change of environment would be outweighed by the advantages to them. The evidence regarding petitioner's care for her children's physical health, hygiene and safety was conflicting. Respondent testified that petitioner fed the children insubstantial meals, failed to bathe them and to wash their clothes. Petitioner refuted each of these accusations. The record indicates however, that prior to the hearings in the trial court, petitioner could not spend substantial periods of time with her children because she had to work. The children were spending considerable time with babysitters.

• 4 The record further establishes that petitioner and the children have resided in four separate locations, and that petitioner had employed 17 different babysitters and worked at five different jobs since the parties' marriage was dissolved. The stability of the environment is an important factor in determining a child's best interests. (In re Custody of Russell (1979), 80 Ill. App.3d 41, 399 N.E.2d 212.) While changes in the parents' residence, employment and choice of babysitters are relevant factors in determining the child's best interest, they are not controlling unless they adversely affect the child's welfare. Mason v. Mason (1977), 49 Ill. App.3d 775, 364 N.E.2d 705.

In the case at bar, the record is devoid of any evidence that petitioner's changes in residence, babysitters or employment adversely affected the children's welfare. Although the ill effects of such changes need not manifest themselves before a court can alter a child's custody (In re Custody of Harne; In re Custody of Nodot (1980), 81 Ill. App.3d 883, 892, 401 N.E.2d 1189, 1194), nothing in the record suggests that the children's present welfare is seriously endangered, and there is a lack of evidence that the children's welfare will be endangered in the future. See Soldner v. Soldner (1979), 69 Ill. App.3d 97, 103-04, 386 N.E.2d 1153, 1158.

In the case at bar, petitioner testified that she had begun to work the midnight to seven a.m. shift. This allowed petitioner to spend considerably more time with the children, and to leave the children with a babysitter only while they were sleeping. Although petitioner's living arrangements with her roommates lacks any clear promise of long-time security, the children appear to have a healthy relationship with the petitioner's roommates' children and a stable environment. Thus, any deficiency in petitioner's ability to provide her children ...


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