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In Re Custody of Krause

OPINION FILED DECEMBER 23, 1982.

IN RE CUSTODY OF BOBBY KRAUSE (DONALD BYRNES, APPELLANT,

v.

ROBERT KRAUSE, APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Aubrey F. Kaplan, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Separate petitions for custody of a nine-year-old boy were filed by Donald Byrnes, his stepfather, and by Robert Krause, his natural father, following the death of his mother to whom his custody had been awarded in an earlier judgment of divorce. The trial court awarded custody to the natural father. The stepfather appeals.

The sole issue presented is whether the circuit court's decision awarding custody of Bobby Krause to Robert Krause, his natural father, was contrary to the manifest weight of the evidence and was an abuse of discretion.

Robert (hereinafter Krause) and Marie Krause were married in 1967. They had one child, Bobby, born in 1972. Marie filed suit for divorce in June 1973 but, in order to maintain health insurance coverage for Marie, the divorce was not finalized until February 1976. Marie had custody of Bobby prior to the divorce and was awarded custody in the divorce judgment although the court made a specific finding that Krause was "a fit person" to have custody of Bobby.

Donald Byrnes (hereinafter Byrnes) and Marie began dating in late 1973 when Bobby was about 16 months old. In 1975, when Bobby was three years old, Byrnes and Marie rented an apartment where they lived together with Bobby. Byrnes and Marie were married in the spring of 1976, shortly after Marie's divorce was final. Byrnes participated in child-care activities from the time Bobby was 16 months old, and later attended parent-teacher conferences and Little League games and involved Bobby in Cub Scouts and in Byrnes' church. Byrnes is employed as a district manager for a publishing company and is required to travel three days of the month. He owns a home in Northbrook, Illinois. Marie and Byrnes had a daughter, Katie, born in 1980. Marie's mother has been the babysitter for Bobby and Katie since the recurrence of Marie's illness in 1981. She testified that she will continue that arrangement if Byrnes is awarded custody of Bobby.

Until Bobby was about 3 1/2 years old, Krause visited him twice a month for approximately two hours at a time. After the divorce judgment was entered in 1976, Krause saw Bobby every weekend, usually all day Saturday. Krause and Bobby often spent their time together on activities related to pets and animals, interests they share. Krause did not attend Bobby's Little League games or parent-teacher conferences and did not take Bobby to church services on weekends of visitation. Krause testified that the timing and length of his visits were controlled by Marie and that the extent of his participation in Bobby's activities often reflected his desire to cooperate with her regarding Bobby's upbringing. Krause continued paying child support and alimony to Marie until her death and made support payments until he obtained custody of Bobby.

Krause has remarried. He and his wife have a daughter and, at the time of trial, were expecting another child. They reside in their own home located on 13 acres in Wayne, Illinois. Mrs. Krause is not employed outside the home. Krause is employed by a chain of 20 pet stores which he owns with other members of his family.

After Marie's death in August 1981, both Byrnes and Krause petitioned for custody of Bobby. At trial, the foregoing evidence was presented, along with the testimony of Dr. Leonard Elkun, a licensed psychiatrist. Dr. Elkun interviewed Byrnes and Bobby approximately two months after Marie's death but did not interview Krause. On direct examination, in response to a hypothetical modeled after the facts presented herein, Dr. Elkun testified that at that time a change of custody or change of environment would be "completely unconscionable and absolutely contraindicated." When questioned on cross-examination about the relationship between Bobby and Krause, Dr. Elkun said, "There was absolutely no animosity, and I found nothing to suggest that Mr. Krause was in any way contraindicated as an adequate or decent individual. And the child cares about him and cares for him."

When questioned, Bobby said that he wanted to stay in Northbrook with Byrnes and visit Krause on weekends. He said that he had friends in Northbrook and elsewhere, that he gets along "pretty good" with Krause's wife, and that he does not feel shy with Krause but is more comfortable with Byrnes.

On March 30, 1982, the court awarded custody of Bobby to Krause. Byrnes appeals.

OPINION

The sole issue raised in this appeal is whether the award of custody to Krause was contrary to the manifest weight of the evidence and was an abuse of discretion. Although it is accepted in Illinois courts that a natural parent has a superior right to the custody of his or her minor child as against a claim made by a non-parent (Eaton v. Eaton (1977), 50 Ill. App.3d 306, 365 N.E.2d 647), that right is not absolute and must yield to the best interest of the child. (Giacopelli v. Florence Crittenton Home (1959), 16 Ill.2d 556, 158 N.E.2d 613.) The superior right of the natural parent serves only as one of several factors used by the courts in resolving the ultimately controlling question of where the best interests of the child lie. In re Custody of Townsend (1981), 86 Ill.2d 502, 427 N.E.2d 1231; In re Custody of Piccirilli (1980), 88 Ill. App.3d 621, 410 N.E.2d 1086.

• 1 In determining the best interest of the child, the court must consider the particular facts and circumstances of each case. (People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201, 247 N.E.2d 417; Eaton.) Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act directs the court to consider all relevant factors in a child-custody determination and lists six such factors. (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).) Subsection (1) thereof states that the wishes of the child's parent or parents as to his custody is one of the relevant factors. The evidence shows clearly that Bobby's natural father wishes to have custody of his son.

Subsection (2) directs the court to consider the wishes of the child as to his custodian. Although Bobby stated that he would rather stay with Byrnes and only visit Krause on the weekends, we find that the record shows that Bobby was expressing a preference for his life to continue as it had been. It would not be unusual for a nine-year-old boy who has recently undergone the death of his mother to want his life to continue in a familiar pattern. Although Bobby's stated preference is for Byrnes ...


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