Appeal from the Circuit Court of Sangamon County; the Hon.
John B. Crain, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals from the order of the trial court which denied his petition for modification of a decree of dissolution to order visitation rights with his son at the Menard Correctional Center, where defendant is presently incarcerated. The decree of dissolution provided for the right of reasonable visitation.
The parties were divorced on October 28, 1976. Custody of their only child, who was born November 8, 1971, was awarded to plaintiff, with defendant given reasonable rights of visitation. Defendant was subsequently convicted of the offenses of murder, aggravated arson, and arson, and sentenced to 40 years' imprisonment for murder and 30 years' imprisonment for aggravated arson. People v. Griffiths (1983), 112 Ill. App.3d 322, 445 N.E.2d 521.
The defendant's petition for visitation rights requested that his parents, the paternal grandparents, be allowed custody of his son on the first and last Sundays of each month to transport him to the facility where defendant is incarcerated for the purposes of visitation, or "for such other and further relief that may be just and proper." The petition stated that there are facilities at Menard to accommodate the visits of young children, that children of 12 years of age and younger do visit relatives at Menard, and that his son has been transported by defendant's mother to Menard on two occasions for visitation purposes. The common law record reflects that the defendant was present in person and with appointed counsel at the hearing on his petition. Plaintiff appeared pro se. Testimony was taken and the trial judge entered the following letter opinion:
"It is the Court's decision that [defendant's] petition for an order directing [plaintiff] to allow the grandparents of Jamie Michael Griffiths to take custody of Jamie from 7:00 a.m. until 7:00 p.m. two Sundays per month for the purpose of transporting him to Menard, Illinois, for visitation should be denied.
The facts in this case appear to differ substantially from those in [Frail v. Frail (1977), 54 Ill. App.3d 1013, 370 N.E.2d 303] relied upon by [defendant]. The court found in Frail that a strong parent-child relationship had been established between the children and their mother. The mother had had custody of the children, ages six and eight, at the time of her divorce in 1974 until she was incarcerated in 1976. She petitioned the Court for visitation rights within seven months after her conviction.
In this case, [the parties] were divorced when Jamie was just short of five years old. [Plaintiff] was given custody of Jamie, and there was not even any provision for [defendant] to pay support for Jamie. The evidence indicates that [defendant] visited with Jamie several times per month in 1977 and 1978, but moved to Phoenix in 1979, and has been in custody since January, 1980.
[Defendant] has apparently seen Jamie twice since January, 1979. According to [plaintiff's] testimony [defendant] never called or wrote to Jamie, sent him birthday presents or cards or wrote him letters to the present date. [Defendant] testified that he has written `a couple of letters' to his son over the past year, but has not telephoned him although [defendant] has telephone privileges.
The only evidence we have as to Jamie's desire in this matter is that he does not wish to make the trip.
Jamie's desire is not controlling on the Court; his wishes concerning the matter are certainly relevant, however, in determining whether such a bond exists between father and son as to render it in the best interest of the minor to be transported from Springfield to Menard twice a month. The evidence does not indicate that any such bond exists here."
The court thereupon denied defendant's petition.
Section 607 of the Illinois Marriage and Dissolution of Marriage Act, effective October 1, 1977, (Ill. Rev. Stat. 1983, ch. 40, par. 607) states a strong public policy designed to preserve the relationship of parent and child, using the language:
"(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health." (Emphasis added.)
Prior to the adoption of the Act, our courts> had recognized a public policy substantially comparable in strength without, however, fixing the legislative standards that when considering modifications of the manner of visitation the test was to be the "best interests of the child," as distinguished from those instances where visitation was totally denied, or ...