Appeal from the Circuit Court of Cook County; the Hon. Henry
A. Gentile, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order entered in the circuit court of Cook County on March 26, 1982, denying termination of joint custody but awarding "physical possession" of a seven-year-old minor child, Rachel Kraft, to her father, Bertram Kraft. Rachel's mother, Lois Lipton, maintains on appeal that the requirements for a change of "physical possession" or physical custody of a child provided by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)(3)) were not met in this case, and that the trial judge's findings were contrary to the manifest weight of the evidence.
We affirm the denial of termination of joint custody. We reverse the award of "physical possession" to the child's father.
Lois Lipton and Bertram Kraft were married on June 13, 1968. Their daughter Rachel was born on December 14, 1974. Lois and Bertram were divorced in Lake County on August 19, 1977, and a settlement agreement between them was approved by the court and incorporated into the divorce judgment. The agreement provided that Lois and Bertram would have joint custody of Rachel, and that Lois would have "physical possession" of Rachel during her minority, with Bertram having visitation rights. The visitation agreement specified that Rachel would be with Bertram every other weekend, every Tuesday afternoon, four weekends during Rachel's summer school vacation, and every other year on 14 specified holidays.
Both Lois and Bertram subsequently moved to Cook County. On August 28, 1979, Bertram filed a complaint in the circuit court of Cook County to have the Lake County divorce judgment registered in Cook County. The registration order was entered.
On April 15, 1980, Lois filed a petition in the circuit court of Cook County asking the court to terminate the joint custody of Rachel and award sole custody to Lois. Lois also requested that the court order Bertram to show cause why he should not be held in contempt for failure to pay $3,505 allegedly owed to Lois under the marital settlement agreement. On July 25, 1980, Bertram filed his petition asking the court to award sole custody of Rachel to him.
The trial of this case began on November 24, 1980, and ended 16 months later on March 25, 1982, with the entry of an order finding that "the minor child's health will be greatly effected [sic] if a change in physical custody is not made" and ordering that "the physical possession of the minor child, Rachel, is hereby awarded to Dr. Bertram Kraft." Lois was awarded visitation with Rachel on three of four weekends per month, and one evening during the fourth week. Provisions for other holiday and vacation visitation were to be made at a later time.
On September 1, 1980, in approximately the middle of the custody trial while Lois' attorney was out of the country, Bertram filed an emergency petition for temporary "physical possession" of Rachel. Bertram argued that Rachel "has suffered a personality defect as a result of being reared by her mother," and asked that he be given "physical possession" of Rachel so he could enroll her in school where he lives.
At the court's request for guidance, Rachel's guardian ad litem, gave her opinion that Bertram was asking for an early custody ruling and that it would be inappropriate to render that ruling at the current stage of the proceedings. The guardian ad litem also asserted that Rachel was not in serious danger, particularly in view of the conflicting psychiatric testimony that had been received up to that point in the trial. The guardian ad litem informed the court that she had talked to Rachel's teachers, who contradicted Bertram's claim that Rachel was "getting worse." The court nevertheless ordered that "physical possession" of Rachel be transferred instanter to Bertram for the 1981 fall school semester. The trial judge later stated that he had so ordered because he "wanted a trial run."
The September 1, 1981, order granting Bertram temporary "physical possession" of Rachel was stayed by this court on September 4, 1981. On September 15, 1981, this court vacated the trial porary "physical possession" order and remanded the cause to the trial court with the direction that the custody proceedings be completed "with all possible promptness." The trial was completed more than six months later.
At trial, Lois had testified that she felt the joint custody arrangement was not working out because of Bertram's lack of cooperation with Lois in her efforts to foster Rachel's growth and development. Lois testified that Bertram criticized her and swore at her in Rachel's presence; that he told Rachel her mother did not love her; that he continuously discussed the custody arrangement with Rachel and instructed Rachel to tell the judge she wished to live with Bertram. Lois testified about an incident in which Bertram came to Lois' house demanding to see Rachel and smashed the glass in the back door.
Four psychiatrists and a psychologist testified as expert witnesses. The first to testify was Dr. Ner Littner, who had been a court-appointed psychiatrist in the Lake County divorce proceedings between Lois and Bertram. Dr. Littner testified that Lois and Bertram both had some minor character problems, but were functioning quite well. He felt, based on two interviews with Rachel, that Rachel was "functioning within normal limits." Dr. Littner testified that Lois has "excellent mothering capacity" and in his opinion it would be in Rachel's best interest to be in Lois' sole custody because Lois had been the one consistent person in Rachel's life. He felt it would be harmful to Rachel to remove her from her present living arrangement and "devastating" to Rachel to separate her from Lois.
Dr. Jack Arbit, a psychologist, was called as a witness by Bertram. He testified that Rachel has a very high I.Q., but was doing "less well" academically than she should with her high intellectual ability. Dr. Arbit testified that Rachel manifested narcissistic, egocentric, manipulative defenses against feelings of inadequacy caused by a lack of satisfaction of Rachel's passive dependency needs as a young child. He stated that Rachel was mildly depressed. Dr. Arbit's opinion was that Lois had caused Rachel's personality problems, and that Rachel ...