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In Re Custody of Barokas

OPINION FILED SEPTEMBER 27, 1982.

IN RE CUSTODY OF PERI BAROKAS, A MINOR. — (STEPHEN R. FEUER ET AL., PETITIONERS-APPELLEES

v.

MARY JANE BAROKAS, RESPONDENT-APPELLANT.)



Appeal from the Circuit Court of Cook County; the Hon. Charles Grupp, Judge, presiding.

PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Respondent, Mary Jane Barokas, appeals from a decision of the circuit court of Cook County awarding custody of respondent's 15-year-old daughter, Peri Barokas, to nonparents, petitioners Stephen R. Feuer and Linda M. Feuer, under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) (hereinafter IMDMA). The issues raised on appeal are: (1) whether petitioners had standing to commence the action; and (2) whether section 610 of the IMDMA establishes the appropriate standard for change of custody to a non-parent.

On June 4, 1980, petitioners filed an emergency petition for custody of Peri alleging that the child then resided with them, that she was neglected and threatened with mistreatment by the mother, and that she wished to live with petitioners. Petitioners also sought to enjoin the mother from removing the child or trying to telephone or visit her. Petitioners met Peri 15 months before the filing of the petition at a time when Stephen Feuer, an attorney, was representing Peri's mother. The court issued a temporary restraining order ex parte. On July 1, 1980, respondent filed a special appearance and moved to dismiss the cause for lack of jurisdiction, arguing that section 601(b)(2) of the IMDMA provided for commencement of a child custody proceeding by a non-parent only if the child "is not in the physical custody of one of [her] parents." (Ill. Rev. Stat. 1979, ch. 40, par. 601(b)(2).) Respondent alleged that she had legal custody of the child pursuant to a divorce decree entered in 1974 and that she had not given physical custody to the Feuers. Respondent alleged that petitioners took possession of the child from the home of the child's adult sister, without respondent's permission, on the evening of June 3, 1980, and filed the emergency petition for custody the following morning. The court found that it had jurisdiction of the subject matter based upon the affidavits, motions and arguments of counsel and denied respondent's motion to dismiss on July 17, 1980. The matter was set for trial on the remaining issues.

The trial was held on December 11, 1980, and March 30, 1981, at which time respondent reiterated her contention that the petitioners lacked standing. The trial court, however, held that the standing issue was res judicata based on the July 17 order. The first witness for petitioners was a social worker who had been appointed by the court to conduct a custody investigation. The social worker testified that Peri had blossomed during the period she had spent with the Feuers and that in her opinion Peri's best interests would be served by awarding her custody to the Feuers. She testified that in her interview of Peri, Peri had complained of having to often go to fast food restaurants to get food for herself and of going hungry when she did not want to go out to buy a meal. Peri also complained of sleeping on the floor of her mother's bedroom and of their frequent moves from one apartment to another. The social worker described respondent's apartment as cluttered with moving boxes and not clean.

Peri's eight-grade teacher for the 1978-1979 school year testified that she considered Peri to be a troubled child who was "looking for love anyway she could find it." The teacher testified Peri often arrived at school looking pale and tired and would ask if she could sleep at school since she was unable to sleep at home. Peri's school work was below average. The teacher scheduled a conference with Mrs. Barokas at which she suggested that respondent arrange counseling for Peri since it was the teacher's belief that a great deal of Peri's energy went into worrying about her own problems. The teacher suspected that there were frequent verbal arguments between the mother and the daughter. An incident at school prompted the teacher to schedule another parent-teacher conference. One day Peri left the classroom suddenly and the teacher found her in an empty classroom crying and shaking. Peri told the teacher that she was having problems at home which she was not allowed to talk about and that she thought that she might be having a nervous breakdown. The teacher suggested immediate counseling for Peri, which was not arranged until sometime later.

Respondent testified that she was 45 years old and was currently employed part-time as a research assistant to a historian and was a part owner of an artist's co-operative at which she sold her work. Respondent's testimony disclosed that she had two daughters, Kimberly, age 25, and Debra, age 22, by her first marriage. Kimberly had lived on her own since she was 18. Debra had lived with Peri and respondent until she was 16 years old, when difficulties between Debra and her mother led her mother to place Debra with friends. Peri's father resides in Turkey, and has had no contact with his child in 12 years.

Respondent testified that she was hospitalized for 4 1/2 months following a suicide attempt in January 1977. In a juvenile court action, Peri was placed with a private party while her mother was recovering. In May 1977, respondent regained custody of Peri. Respondent testified that between May 1977 and the commencement of this action, she and Peri had seven residences. Sometimes they lived in their own apartment; other times they shared apartments with various women friends of the respondent, and once, they lived with a family for whom her mother worked as a housekeeper. The moves were triggered by either disputes with the landlord, disagreements with the roommates or financial difficulties resulting from the cessation of child-support payments from Peri's father.

Respondent testified that Peri met petitioners in March 1979, when Stephen Feuer represented respondent in a dispute between her and a roommate. Respondent stated that with her permission Peri began to work in petitioner's law office after school. Respondent testified that in May 1980 Peri was operated on to remove a cyst from her ovary. At that time Peri had dropped out of high school at the suggestion of her therapist since she was very depressed and unhappy at school, was doing poorly, and frequently cut classes. Respondent testified that the weeks before that surgery were very trying for Peri because she was afraid of the surgery and ashamed to be seen by her former classmates now that she was not attending school. So it was agreed that her mother would let her visit the Feuers for approximately eight nonconsecutive days. Peri was released from the hospital on May 28, 1980, and respondent took Peri to stay with Peri's sister Kimberly, until respondent found a new apartment as a prior lease arrangement had been broken by the lessor.

Peri testified in chambers that she would not return to her mother even if the court so ordered. She testified that ever since 1977 she and her mother had argued constantly about everything. Peri testified that on one occasion her mother had hit her on the knee with a pan. Peri stated that in order to prevent her from leaving the apartment late at night, her mother would tie Peri's bedroom door shut or threaten to spray Peri with mace. Her mother would also threaten to disfigure Peri by pouring hot coffee over her while she slept. Peri testified that once she slept with a knife under her pillow for three days as a result of these threats but admitted that she may have become paranoid. Peri indicated that she and her sister had talked about ways for Peri to get away from her mother. The Feuers did not tell Peri that they would let her stay with them until after Peri's operation when she was staying with Kimberly. Peri also told the court that she did not want to live with her mother because her mother was planning to move to the south shore, an area which Peri considered to be too dangerous. Peri said that her mother wanted to move there "to isolate me from everything." Peri testified that she liked her new school, was getting high grades and had new friends. She stated that she would prefer to live with the Feuers.

Petitioner, Stephen Feuer, testified that he first met Peri in March 1979. His secretary became ill so he decided to hire a high school student temporarily to answer the telephone and do filing. Since Peri was the child of a client and seemed bright, he hired her. Feuer testified that he and his wife often took Peri out to dinner after they finished work. Feuer testified that on four or five occasions he took Peri to the beach. Different people would accompany them: Peri's sister, Kimberly, Mrs. Barokas and his wife. The Feuer's also took Peri on a weekend vacation to Indiana. Feuer testified that "most of the time" he and his wife would ask Mrs. Barokas for permission to take Peri somewhere, but "after we had known Peri for a while, we told Peri we would like to take her to a show or whatever we had in mind and expected her to ask her mother."

Feuer testified that he had long conversations with Mrs. Barokas on two occasions about the problems she was having with her daughter. After the second of these, Feuer suggested that Peri stay with the Feuers during the summer so that Mrs. Barokas could take a vacation and she and Peri could work out their problems before the school year began.

Feuer testified that he and his wife decided to seek custody of Peri about the time that she was in the hospital. He stated that her situation seemed desperate and he thought that seeking her custody was preferable to allowing Peri to carry out her threats to run away from home.

Kimberly Barokas testified that for sometime she had been alarmed because the arguments between her mother and Peri were becoming frequent and more violent and Peri had talked more seriously about suicide. The sister testified that she repeatedly urged her mother to seek counseling for herself and Peri but no arrangements were made until Kimberly made the appointments and accompanied her mother and sister to the first two sessions. Kimberly testified that Peri was still undergoing therapy. Kimberly also testified that sometimes her mother was a very concerned type of parent and other times she was not.

Respondent contends that petitioners did not have standing to commence this suit. Respondent argues that under section 601(b)(2) of the IMDMA a non-parent may commence an action to acquire custody of a child only if the child "is not in the physical custody of one of his parents." (Ill. Rev. Stat. 1979, ch. 40, par. 601(b)(2).) Respondent argues that the trial court erred in finding that the taking of the child from the home of her adult sister, without her mother's permission, one day before filing the custody action, gave petitioners physical custody within the meaning of the statute. Respondent asserts that such an interpretation is contrary to the spirit and intent ...


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