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In Re Custody of Henkins

OPINION FILED AUGUST 23, 1983.

IN RE CUSTODY OF CARRIE ANN HENKINS, A MINOR — (KENNETH HENKINS, PETITIONER-APPELLEE,

v.

DENNIS SNOW ET AL., RESPONDENTS-APPELLANTS).



Appeal from the Circuit Court of Marshall County; the Hon. Charles M. Wilson, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This case involves a custody dispute between the natural mother of a minor child and the maternal grandfather of the child. The circuit court of Marshall County entered an order awarding custody of the child to the maternal grandfather, Kenneth Henkins. The mother, Sherry Snow, appeals from that order.

Sherry at age 20 and unmarried gave birth to a daughter, Carrie Ann Henkins, on October 14, 1975, who is the subject of the custody dispute. After her birth the child, Carrie, was taken to the home of her grandparents, Mr. and Mrs. Kenneth Henkins. The home is near Lacon, Illinois, and with the exception of brief periods of time Carrie has always been with the Henkins. The mother, Sherry, also returned to her parents' home, but off and on absented herself for long periods of time, leaving her whereabouts unknown. The mother, Sherry, testified that while living with her parents she took care of Carrie by bathing, feeding and playing with her. She did admit that on occasions she left her parents' home taking Carrie with her and that she did not inform her parents of her whereabouts because it was none of their business.

During one of the absences Mr. Henkins found his daughter, Sherry, and Carrie living at the Lacon Marina in a camping trailer. Mr. Henkins testified that the trailer was unheated and the temperature was in the 40's. Sherry's testimony was to the contrary in that she stated that she and Carrie stayed at the Marina in the summertime. Mr. Henkins further testified that on another occasion he found Sherry and Carrie at the Nighsonger residence, which was completely run down and dirty and had no modern facilities. Sherry's testimony was to the contrary. She stated that she only visited the Nighsonger residence occasionally.

Sherry moved out of her parents' home in June or July of 1978 and in August of that year she married Dennis Snow. It was Sherry's testimony that she left Carrie with her parents until she and her husband were better situated financially.

In May of 1979 Sherry and her husband moved into a two-bedroom trailer. The Henkins refused to return Carrie to her mother because they did not believe that she and her husband were financially able to care for her. At this time Dennis Snow was earning from $150 to $165 per week. For a portion of the time the trailer was without heat or electricity.

In November 1979, Carrie, while visiting her mother, suffered a severe burn on her leg when a coffee pot was accidentally overturned. As the result of this injury Carrie underwent two skin graft operations. Sherry testified that no more skin graft operations would be needed, while her grandfather testified that he believed more would be needed, but Carrie's doctor would not make that decision for another six months. The pertinence of this testimony concerns medical insurance coverage. The grandfather, Henkins, is a longtime employee of Caterpillar Tractor Company, and Carrie is covered by his extensive medical policy with that company.

In July of 1981 Dennis Show was charged with driving while intoxicated. A friend, George Pelphrey, posted bail and offered Dennis a job at his bait and tackle business if Dennis would stop drinking. According to Sherry, Dennis and the Pelphrey's, Dennis did stop drinking, is employed by Pelphrey and is earning $150 per week take home pay. Shortly before the custody hearing Sherry and Dennis moved into a residence with the Pelphrey's where with Carrie they were to have the use of two bedrooms and were to share the use of the kitchen and living room. The Pelphrey's have four children.

The facts when analyzed disclose that when Sherry married Dennis Snow she voluntarily left Carrie with the Henkins for a period in excess of two years. The custody action was prompted when Sherry removed Carrie from school near the end of a school term and without prior notification to the Henkins.

The record further establishes that there has been occasional domestic violence between Sherry and Dennis and that Dennis Snow has failed to support children of his from a prior marriage.

This action was commenced when the grandfather sought to obtain the return of Carrie by petitioning the court for a writ of habeas corpus. The court ordered the writ to issue and later entered a temporary custody order placing Carrie with her grandparents. Dennis and Sherry obtained the services of an attorney from legal aid and filed a counterpetition for child custody and a response to the petition for writ of habeas corpus. As previously set forth, the custody of Carrie was awarded to the maternal grandfather, Kenneth Henkins.

The Snow's first assign as reversible error that the trial court failed to use the proper standard in determining the right to custody of the minor child.

It is the contention of the Snow's that the superior-right doctrine should have been applied, the effect of which is to recognize that there is a presumption that a natural parent has a superior right to custody of a child over the claim of a third party. In support of this agreement the Snow's cite the case of In re Custody of Townsend (1981), 86 Ill.2d 502, 427 N.E.2d 1231. The facts in Townsend are too bizarre to be in any way equated with the facts in the instant case. In Townsend the natural father prevailed in a custody dispute with the stepdaughter of the child's mother. The mother had been convicted of murdering the wife of the natural father. The reviewing court in Townsend did give lip service to but not full blessing to the superior right doctrine relied on by the Snow's in the instant case. In Townsend the court stated:

"In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts> in resolving the ultimately controlling question of where the best interests of the child lie. (See People ex rel. ...


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