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In Re Custody of Roberts





APPEAL from the Circuit Court of De Kalb County; the Hon. CARL A. SWANSON, JR., and the Hon. REX F. MEILINGER, Judges, presiding.


Wayne and Mary Roberts appeal from the January 21, 1981, order of the trial court which modified a previous custody order of February 16, 1978, and transferred custody of Dawn Marie Roberts from them to Janet Fox. Also, they appeal from the October 2, 1981, order denying their petition for post-judgment relief. Wayne and Mary Roberts are the parents of Janet Fox, and Janet Fox is the natural mother of Dawn Marie.

On appeal, Wayne and Mary Roberts first contend that the trial court's decision granting Janet's petition for change of custody was contrary to the manifest weight of the evidence and that the trial court had applied an improper burden of proof in determining the best interest of the child under the guidelines of section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602).

• 1 At the outset, we point out that neither the original grant of custody of Dawn Marie to her grandparents nor the award of custody to her mother, Janet Fox, at issue in this matter, involved a proceeding under the Illinois Marriage and Dissolution of Marriage Act. The provisions of that Act are not applicable to this matter. In re Custody of Townsend (1981), 86 Ill.2d 502, 509; see Ill. Rev. Stat. 1979, ch. 40, par. 102; 86 Ill.2d 502, 517-18 (concurrence in part and dissent in part).

• 2, 3 In a custody determination, a third party seeking to obtain or retain custody of a child has the burden of overcoming the presumption that a natural parent has a superior right to custody; further, the third party must show that it is in the child's best interest that the third party be awarded the care, custody and control of the minor. (In re Custody of Townsend (1981), 86 Ill.2d 502, 510-11, 515; People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201.) In this regard, the claim of third parties, who, like Wayne and Mary Roberts, have had actual and legal custody for a substantial amount of time is entitled to significant weight.

"It is obvious that in a custody dispute a court should give weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. [Citations.] But however important this factor may be in a given case, it does not rise to the level of a presumption so as to `neutralize' the superior-right doctrine or transpose the superior right from the natural parent to the third person. It remains simply a factor to consider in ascertaining what will best serve the interests of the child." (In re Custody of Townsend (1981), 86 Ill.2d 502, 515.)

It should be added that, although the burden is on the third party to overcome the superior-right presumption in favor of the natural parent, the best interest of the child is the standard, and it is not necessary that the natural parent be found unfit or be found to have legally forfeited her rights to custody, if it is within the best interest of the child that she be placed in the custody of the third person. People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201, 209.

With these guidelines in mind we have reviewed the record in this matter. Janet Fox gave birth to Dawn Marie on May 30, 1977. At that time she was 17 years old, unmarried, not employed, and had a ninth-grade education. She and her child lived with her parents, Wayne and Mary Roberts, for approximately 7 months after the birth of Dawn Marie, except for a 1-month visit to Texas during which time Janet left her child with Wayne and Mary Roberts. In January 1978, Janet, who was 18 years old and still not married or employed, received a telephone call from her mother, Mary Roberts, who requested that she consider giving her parents custody of the child for insurance and tax purposes. At that time, Janet had no insurance for her child, while her parents, who were working, had an insurance policy that would cover the medical needs of Dawn Marie. Janet agreed to give her mother temporary custody of Dawn Marie.

At the January 1981 hearing, Janet testified that, during the original custody hearing, the judge had asked her if she realized that she was relinquishing custody of the child. Although she had responded in the affirmative, she thought that the change of custody would be temporary. Janet also remarked that she did not discuss the original transfer of custody matter with an attorney because her mother told her there was no need for a lawyer to be present. In Mary's testimony in January 1981, she denied that she had told Janet the change in custody would be temporary but admitted that she had informed Janet that she could reclaim her daughter when she married and settled down. Janet testified that prior to filing the present lawsuit, she requested that her mother return the child to her, but her mother refused to relinquish custody, stating that Janet would have to go to court to regain custody.

Janet's testimony revealed that she had lived in seven different locations since relinquishing custody of her daughter 3 years earlier. However, she testified she had visited with her child almost every week since Wayne and Mary Roberts were granted custody in February 1978, though Mary testified that sometimes Janet waited 2 weeks before calling to inquire about the child. At the time of this appeal, both Janet and Mary testified, Janet visited Dawn Marie 2 or 3 days a week. On those occasions she picked up Dawn Marie at Wayne and Mary Roberts' residence and brought her to her marital home for overnight visits.

Janet did testify that, at times, when she would take Dawn for 2- or 3-day visits, the child would become upset and ask to go home to her grandparents, and Mary's testimony on this matter conformed to Janet's. According to Mary, occasionally when the child would visit Janet, Janet would call Mary and inform her that the child was upset and wanted her. On several occasions when Mary arrived at Janet's home to pick up Dawn, the child was crying. To the best of her knowledge, Mary testified, the child never requested that Mary take her to Janet's home.

During the time her parents had custody of Dawn Marie, Janet further testified, she had not given them any financial assistance to defray the cost of caring for the child because her parents did not ask her for any money. However, Janet said she did buy clothes for her daughter on a regular basis when she was employed, but she had not been able to do so regularly for the past 14 months, because she was unable to work due to pregnancy and the raising of her infant son.

Janet also related that upon a recent Sunday visit to her parents' home she noticed that the home was "really messy" with garbage strewn on the floors, dishes on the cupboards, and clothes lying all over the house. Mary's testimony, on the other hand, described garbage collected in the kitchen and dirty laundry strewn on the stairs to the basement at Janet's house. When she visited her parents, Janet also observed that her daughter was dirty and constantly had colds. She admitted, however, that the child played outside at her parents' farm and that she was likely to get dirty doing so.

Also at the hearing in January 1981, Janet testified that she was married to Rick Fox and had been his wife for a year and a half, and they had a 5-month-old child as a result of the marital relationship. At the hearing, Rick testified that he had had a steady job for the past 39 months and was earning $19,500 per annum. His medical and dental insurance policy would provide full coverage for Dawn Marie if his wife were granted custody of the child. Rick was willing to accept Dawn into the household and assume the financial responsibility of supporting her. He further testified that he had known the child since she was 3 months old, that she referred to him as "daddy" and that he felt as if she were his ...

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