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04/29/87 In Re Marriage of Beth Ann Oliver

April 29, 1987

IN RE MARRIAGE OF BETH ANN OLIVER, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

JOSEPH HAROLD OLIVER, SR., Respondent-Appellant

507 N.E.2d 1298, 155 Ill. App. 3d 181, 107 Ill. Dec. 929 1987.IL.560

Appeal from the Circuit Court of Madison County; the Hon. George Filcoff, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

Joseph Harold Oliver, Sr. (father), appeals from an order of the trial court that granted the petition of Beth Ann Oliver (mother) for a change of custody of their minor child from the father to the mother.

The father and mother were married on August 28, 1981, the child was born on March 9, 1982, and the marriage was dissolved on May 11, 1982. Under the terms of the judgment of dissolution, the mother was granted custody of the child. The mother retained custody until June 20, 1983, when an agreed order was entered by the court that changed the custody of the minor to the father. That order recited that it was in the best interest of the child that the change in custody be made.

During the period both preceding and following the June 1983 order, the mother was working and attending computer technology school in St. Louis. At times she held two jobs. The father was employed as a chemical operator at Monsanto, from which he expected to earn about $30,000 in 1986.

The mother had extended visitation with the child after the June 1983 custody change. The child would stay with her for two to three days and sometimes for weeks at a time. During the periods of extended visitation, the mother would place the child in day care at her own expense. Beginning in August 1985, and until December 29, 1985, the child lived with the mother on a regular basis. The child was placed in a day care center while the mother worked at her new job with Pitney-Bowes. The father made no objection to this arrangement. On December 4, 1985, the mother filed her petition for modification to have custody of the child changed from the father to herself. Following the filing of the petition, the father resumed his custody of the child.

Hearing on the petition was held on February 5, 1986, and May 6, 1986. Both the mother and the father conceded that the other was a good parent and took good care of the child when under their custody. The mother was, however, critical of the fact that when the child was with the father he would at times be left with the father's grandparents, who were "good people" but spoke no English. This brought about speech difficulties with the child. The mother complained that while in the father's custody the child had developed a problem with bed-wetting. He would use foul language and would become unruly and difficult to manage. The child would also suffer from having watched horror movies while with his father. At the time of the second day of the hearing, the father had lost his job with Monsanto but was actively seeking other employment.

On June 5, 1986, the court entered an order that changed the custody of the child from the father to the mother. In pertinent part the order stated:

"That subsequent to the original Judgment of Dissolution awarding custody of the minor child to BETH ANN OLIVER, a modification order was entered granting custody to JOSEPH HAROLD OLIVER, SR. That BETH ANN OLIVER has demonstrated that she is a fit and proper person to have the care, custody, control and education of the minor child, JOSEPH HAROLD OLIVER, JR. and after considering all relevant factors in determining child custody including those enumerated in Chapter 40, Paragraph 602 of Illinois Revised Statutes and having had an opportunity to observe the parties and other witnesses, the Court finds that it is in the best interests of the minor child that his care, custody, control and education be awarded to BETH ANN OLIVER."

The father contends on appeal (1) that the court erred in failing to make specific findings to support a modification in the order of custody as required by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 610(b)), and (2) ...


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