Appeal from the Circuit Court of McHenry County; the Hon.
Henry L. Cowlin, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 18, 1984.
Julie Bourey, the mother of an infant child, Jacqueline M. Bourey, appeals an order of the circuit court which awarded custody of the child to the putative father, David Giagnoni.
Petitioner, David Giagnoni, and respondent, Julie Bourey, both 18 years old at trial, had dated for 2 1/2 months when Julie first suspected she was pregnant. In January 1982, she became depressed under the stress of the expected pregnancy, took an overdose of a cold medication, and was admitted to Ridgeway Hospital, where the pregnancy was confirmed. After discussions with her parents, David, and her doctor, she determined it would be in the best interest of the child if it were adopted. David at first refused to surrender his parental right, then signed the surrender paper, revoked his surrender within the three-day period, told Julie he would sign the paper again, but finally refused to surrender his right.
After the child was born, September 2, 1982, she lived for a week in a foster home while Julie lived in David's father's apartment with David. When it became apparent David would not agree to the adoption, Julie decided to take custody of the child.
On October 13, 1982, David filed a petition seeking custody of the child. On the same day Julie filed a paternity action (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.). The court consolidated the actions, and Julie filed a counterpetition for custody.
After hearing testimony from the parties, Julie's father, David's mother, and a social worker, the trial judge, in his letter of decision, applied the general guidelines of section 602 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1983, ch. 40, par. 602.) The court rejected the "tender years" doctrine, finding that there is no longer a presumption in Illinois that a mother should have custody of a young child simply because she is the mother. In seeking the "most stable environment for the child," the court determined that Julie showed "less emotional and mental stability" than David. The letter concluded:
"[C]onsidering all of the factors involved, including the mental and emotional stability and maturity and all other factors referred to and circumstances surrounding the birth of the child, it is the Court's opinion that the custody of the minor child, * * * should be awarded to the father, David B. Giagnoni provided he shall be able to raise her with the assistance of his mother; otherwise, the child shall remain in the custody of the natural mother."
The final order, filed August 8, 1983, awarded custody to David, omitting the provision that he is to raise the child with the assistance of his mother. Julie was ordered to pay $24 per week child support.
Julie filed a post-trial motion raising the new fact that a named individual has proposed marriage to her, and also raising, in a memorandum of law, the objections to the ruling raised on appeal here.
Notice of appeal was filed August 23, 1983. This court stayed enforcement of the trial court order. On August 26, 1983, pursuant to the stay and the posting of an appeal bond, the trial court returned custody to Julie.
Julie initially contends that the trial court erroneously applied section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 602) to resolve the custody issue. We note that the trial judge in his letter announcing his opinion applied the "best interest of the child" standard and noted that he had examined section 602 "for a general guideline in determining the best interest of the child."
• 1 The question of what statute applies to proceedings for custody of a child of unmarried parents is not clearly agreed in Illinois law. Traditionally, habeas corpus (Ill. Rev. Stat. 1983, ch. 110, par. 10-101 et seq.) has been held to be the proper proceeding in which to determine a custody dispute between unmarried parents. (People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201, 208; In re Ritchie (1978), 58 Ill. App.3d 1045, 1050.) In actions between an unwed biological parent and grandparents, the Probate Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11-7) has been applied. (In re Custody of Townsend (1981), 86 Ill.2d 502, 509; In re Custody of Roberts (1982), 107 Ill. App.3d 913, 915.) In one appellate decision the Illinois Marriage and Dissolution of Marriage Act was applied in custody proceedings between unmarried parents. (In re Custody of Myer (1981), 100 Ill. App.3d 27, 32.) However, the Illinois Supreme Court has refused to apply the Illinois Marriage and Dissolution of Marriage Act to determine property rights between unmarried partners, referring to legislative policy behind the Act and also to that behind the statute making common law marriages invalid. (Hewitt v. Hewitt (1979), 77 Ill.2d 49, 61-62. See also In re Mac Harg (1983), 120 Ill. App.3d 753 (attorney ...