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07/30/87 In Re Marriage of Donald K. Eldert

July 30, 1987

IN RE MARRIAGE OF DONALD K. ELDERT, PETITIONER-APPELLEE,


Before discussing the merits of this appeal, we first must consider the father's motion to dismiss the appeal on the ground that the report of proceedings has not been certified as correct by the trial Judge. Supreme Court Rule 323 (107 Ill. 2d R. 323) provides for the trial Judge to certify to the correctness of the report of proceedings or, in the alternative, for the parties to stipulate to the filing of the report of proceedings without certification. If no verbatim transcript is obtainable, the rule authorizes the appellant to "prepare a proposed report of proceedings from the best available sources, including recollection." Such a report also may either be stipulated to or certified. Another option permitted by Rule 323 is for the parties by written stipulation to agree upon a statement of facts which may be filed in lieu of the report of proceedings.

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

and SANDRA ELDERT, Respondent-Appellant

511 N.E.2d 945, 158 Ill. App. 3d 798, 110 Ill. Dec. 768 1987.IL.1094

Appeal from the Circuit Court of Will County; the Hon. Bruce Falk, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE STOUDER, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Sandra Eldert appeals from an order of the circuit court of Will County, Illinois, which modified a judgment of dissolution of marriage by changing custody of Jason Eldert from the mother, Sandra, to the father, Donald K. Eldert. In 1981 the mother and father obtained a dissolution of their three-year marriage and, by agreement of the parties, custody of their then two-year-old son was awarded to the mother, with the father to have visitation for one full week each month. By mutual agreement the father usually had Jason with him for two weeks each month until August of 1984.

In August of 1984 the mother notified the father that he could no longer have Jason for an entire week at a time because Jason would soon be starting kindergarten. A short time later, on August 13, 1984, the father obtained temporary custody of Jason by means of two ex parte orders of protection which he obtained against the mother and her boyfriend, Raymond White. In the father's petition for the orders of protection, he alleged that Raymond White hit or struck Jason on more than one occasion and that the mother allowed him to do so. On August 23, after a hearing, the orders of protection were terminated for lack of proof, custody was returned to the mother, and the previous visitation was reinstated.

Next, the father filed an amended petition for change of custody in which he alleged that the mother did not provide a desirable home or proper care for Jason. The father specifically asserted that the mother allowed "male friends of hers to hit and batter" Jason, that she used improper discipline by putting pepper oil on Jason's tongue, that she "discussed physical aggression against Donald K. Eldert with the minor child," and that she exposed Jason "to acts of a sexual nature." In October the father obtained an order for the parties to submit to a psychiatric exam at the Isaac Ray Center in Chicago in connection with his petition for change of custody.

The hearing on the amended petition began on June 10, 1985, and, in addition to the parties, witnesses included experts on behalf of both the mother and the father, the father's present wife, his mother, and a babysitter. According to the testimony, Jason is a very active child who has behavior problems in school and who has required considerable discipline at home. The mother has a high school education and works full time as an assistant to an ophthalmologist. The maternal grandmother cares for Jason when the mother is at work. The mother stated that she disciplines Jason by spanking him with her hand and by depriving him of privileges. She admitted that her boyfriend had also spanked Jason with his hand two or three times and that on two occasions she put tabasco sauce on Jason's tongue when he persisted in using bad language. When the mother was notified by Jason's kindergarten teacher that his school behavior was disruptive, she at first did nothing, thinking that this was typical behavior for his age, but after additional contacts from the teacher, she worked with the teacher in an effort to improve his school behavior. According to the mother, after Jason was returned to her following the protective order, he was afraid to sleep alone. Since that time she has allowed him to sleep with her.

The father testified that Jason responds well to his approach to discipline, which includes verbal corrections and Discussion about unacceptable behavior. The father is a college graduate and a certified public accountant who has remarried. He stated that if he is awarded custody, his present wife will quit her job and stay home to be a full-time parent to Jason.

The evaluation by the Isaac Ray Center included interviews by a psychiatric social worker and a child psychiatrist and testing by a clinical psychologist. The team concluded that Jason is an emotionally disturbed child with an unusually high level of anxiety and an attention deficit disorder. Jason's behavior was observed to be better with his father than with his mother. The team recommended that the father be given custody of Jason for a one-year trial period, and it based that recommendation on the fact that the father can provide a more structured day-to-day routine and more consistent discipline. The mother was seen as emotionally stretched as a result of defending the custody action, the stress of her work, and the demands of being a single parent. The team witnesses also stated that some of Jason's anxiety was likely due to the on-going custody dispute.

The mother's expert, Dr. Ner Littner, a psychiatrist with a specialty in child psychiatry, testified that in his opinion, Jason was suffering from a neurotic emotional disturbance of an internalized nature, that he is suffering from a severe case of separation trauma (where he fears separation from his mother), and that he needs immediate psychotherapy. It was the opinion of Dr. Littner that Jason should remain in the sole custody of his mother. Dr. Littner based that opinion on the fact that the mother is the "psychological mother" as a result of the bonding that occurred during the first year of Jason's life and on the expectation that separation of Jason from his mother would ...


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