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In Re Marriage of Sweet



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


This case is before us for a second time following additional hearings mandated by our decision in In re Marriage of Sweet (1982), 104 Ill. App.3d 738, 432 N.E.2d 1098, in which we directed that the June 23, 1981, custody order be vacated and necessary hearings conducted in order to establish a proper basis for a custodial award under section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act)(Ill. Rev. Stat. 1981, ch. 40, par. 610(b)). *fn1

The issues raised in the present appeal are whether the circuit court: made the required findings pursuant to section 610(b) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 610(b)); made findings sufficiently supporting the order changing custody; and recognized a presumption in favor of the present custodian, the father, or exercised initial discretion in the modification proceedings which rendered the presumption nugatory.

The circumstances of this case are somewhat unique; a brief summary is required for a full understanding of its disposition. As revealed in In re Marriage of Sweet (1982), 104 Ill. App.3d 738, 432 N.E.2d 1098, the mother, Donna, obtained a default divorce from Robert, the father, July 7, 1972, after four years of marriage. Sole custody of Bill, the only child of their marriage, then age 2 1/2, was awarded to Donna upon stipulation of the parties. No evidentiary hearings with respect to custody or fitness were then held. Each party remarried and other children were born to their new families.

In August 1977, Robert, then a career soldier in the United States Army, petitioned for custody of Bill upon the allegation that Donna and her present husband had no permanent place of residence; lived in a variety of different States and locations; interrupted Bill's lifestyle and disrupted his school attendance. The Cook County Department of Supportive Services' investigation report noted interviews with Robert, his present wife and his mother, set forth allegations of insufficient food, clothing, discipline, education and supervision while in Donna's custody; concluded that Robert was a responsible person and found no economic or emotional limitations restricting him from having custody. The report noted that no direct information was available on either the custodial mother or her husband.

On December 15, 1977, without making findings with respect to section 610(b) of the Act, the circuit court awarded Robert custody and granted him the right and authority to take physical possession of Bill wherever he might be found. In February of 1978, Robert went to a South Carolina school which Bill attended, presented the principal with a copy of the court order, took Bill from school first to Fayetteville, North Carolina, then to Ft. Sheridan, Illinois, and then to Karlsruhe, West Germany, where Robert was stationed.

Approximately one year later, in February of 1979, Donna filed what was then a section 72 petition (now section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401)), and moved to vacate the December 15, 1977, order. The circuit court on August 27, 1979, pursuant to Donna's motion, ordered Robert to bring Bill back to Chicago for visitation.

The Cook County Department of Supportive Services conducted a court-ordered medical and psychological examination of Bill on October 3, 1979. On that same day, the court interviewed him in camera. An evidentiary hearing on the section 72 petition was held on November 15, 1979, and the petition was denied by the circuit court. Bill's visitation with Donna was continued by order of court, however, until further notice. On February 22, 1980, Donna petitioned for a change of custody. Two evidentiary hearings were thereafter held, the first on March 12, 1981, on an amended petition, and the second on June 15, 1981.

A psychiatric report by Dr. June C. Frye, dated January 5, 1980, and filed with the circuit court on October 1, 1980, noted interviews with Donna and Bill. The report referred to a telephone conversation with a member of the Bremen Youth Commission from whom Bill was receiving psychotherapy. Dr. Frye concluded that Bill gave evidence of varied emotional disturbances and that his best interests would be served by allowing him to continue in his present situation with Donna. The report also noted that no interview was attainable with Robert and revealed inadequate information about both. Dr. Frye recommended that psychiatric evaluation of both parents be undertaken in order to determine in whose custody the boy's interests will best be served. No follow-up psychiatric evaluation was made, however, and none appeared in the record.

On June 23, 1981, the order of December 15, 1977, was vacated and the provisions of the 1972 divorce decree were reinstated with respect to child custody. The circuit court asserted that it was considering the proceedings as a rehearing of the December 15, 1977, change of custody order. Again, no section 610(b) findings were then made. The first appeal proceeded from the June 23, 1981, order.

After reversal and remand for purposes first above cited, a second circuit judge conducted the present hearings on Donna's amended petition for change of custody. The hearings culminated in the order granting custody of Bill to Donna, entered May 6, 1983, from which the instant appeal is taken.

At the time of these hearings, Bill, now age 13, was living with his mother in Gilman, Illinois. He had lived with her for his entire life except for the 19-month period during which time he lived with his father during the latter's period of Army service. A new Supportive Services investigation was ordered and a guardian ad litem and attorney was appointed for Bill by the circuit court. A social worker for the Department of Children and Family Services investigated Donna's home in December 1982 and made two visits there. Donna's eight-room house had a living room, dining room, kitchen, four bedrooms and a workshop. Bill's bedroom was shared with his half brother. They slept in bunk beds. The furnishings were adequate.

The social worker observed that Bill and his half brother followed their mother's directions, were appropriately dressed for their age, and were clean. Bill was well adjusted to the home, was part of the family, and was getting along with his siblings, his mother and stepfather. There was no sign of tension between them, but a lot of joking back and forth during which time Bill was polite, well-behaved and articulate for a child of his age. Disrupting his life at this age would be a serious matter, according to the social worker.

Through cross-examination, Robert's attorney established that the social worker did not verify the employment history of Donna's husband, but she stated it would have no effect on the report she filed. Before they moved to Gilman, Bill had trouble in a Posen, Illinois, school based upon a personality conflict with the teacher, relating to a racial integration problem in the school system there. He is doing well in the Gilman School which he now attends. The social worker found love prevalent in Donna's home as far as the children and Bill were concerned. Since she did not ...

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