APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
McCuan et al., Plaintiffs-Appellees, v.
Vickie McCuan, Defendant-Appellant (John McCuan,
531 N.E.2d 102, 176 Ill. App. 3d 421, 125 Ill. Dec. 923 1988.IL.1652
Appeal from the Circuit Court of Saline County; the Hon. Arlie O. Boswell, Jr., Judge, presiding.
PRESIDING JUSTICE HARRISON delivered the opinion of the court. CALVO and WELCH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
On December 2, 1985, William McCuan and Janice McCuan, plaintiffs, the grandparents of the child Allisha McCuan, brought suit against Vickie McCuan (the defendant), the mother of the child, for temporary and permanent custody of the child. The circuit court of Saline County issued an order on that date temporarily restraining the defendant from removing the child from the physical custody of the plaintiffs. The court subsequently heard the plaintiffs' petition for temporary custody on December 13, 1985, and on December 23, 1985, awarded temporary custody of the child to the plaintiffs. The court conducted a bench trial on the issue of custody on February 17, 1987, and from February 23 through 25, 1987. On June 10, 1987, the court awarded the "care, custody, control and education" of the child to the plaintiffs, granted the defendant weekly visitation rights, and ordered the defendant to pay half of the guardian ad litem's fees of $2,692.50, and half of the psychologist's fees of $1,049.85. The defendant appeals. We reverse.
The defendant married John McCuan on November 21, 1984, two weeks after the birth of their child, Allisha. The McCuans resided together at the home of the plaintiffs prior to and immediately after their marriage, with occasional weekend visits to the home of the defendant's mother.
On January 28, 1985, John McCuan pleaded guilty but mentally ill to charges brought in Franklin County of home invasion and armed robbery, was sentenced to nine years' imprisonment, and was incarcerated at various institutions, including the Franklin County jail, the Menard Correctional Center, and the Shawnee Correctional Center. After John McCuan's incarceration, the defendant and the child moved out of the plaintiffs' home and into the defendant's mother's home. The defendant filed a petition for dissolution of marriage from John McCuan on December 27, 1985, and the court entered a judgment of dissolution on April 17, 1986. John McCuan subsequently petitioned the court to appoint a guardian ad litem to represent the interests of the child. (See Ill. Rev. Stat. 1985, ch. 40, par. 506.) The court ordered the appointment of the guardian on May 20, 1986.
After the defendant and the child moved out of the plaintiffs' home, the plaintiffs took over the care and supervision of the child on most weekends. Each week the plaintiffs would receive a call from the defendant and would ask her if they could care for the child that weekend. If the defendant agreed, the plaintiffs would accept the child on either Friday or Saturday. The defendant called the plaintiffs at least once a week after she moved out of their home. The plaintiffs could not call the defendant because she did not have a telephone. After the weekend visitation, the plaintiffs would return the child between 6 p.m. and 9 p.m. on Sunday evening.
On the weekend beginning Friday, November 29, 1985, the plaintiffs accepted the supervision of the child in the usual manner. Upon receiving the child that day, the grandmother noticed that the child had a very serious diaper rash. The plaintiffs subsequently brought the child to the emergency room of the hospital for treatment.
On Monday, December 2, 1985, the plaintiffs filed their petition for custody. In their petition, the plaintiffs alleged that the defendant was not a fit and proper person to care for the child and requested that the court remove the child from the custody of the defendant and award custody to the plaintiffs. The plaintiffs alleged as grounds for this action, inter alia, that the defendant had engaged in an adulterous relationship with a man in the presence of the child, that she had used drugs and alcohol in the presence of the child, ...