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08/24/89 In Re Marriage of Randy Gustafson

August 24, 1989

IN RE MARRIAGE OF RANDY GUSTAFSON, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

and PAULA GUSTAFSON, Respondent-Appellee

543 N.E.2d 575, 187 Ill. App. 3d 551, 135 Ill. Dec. 192 1989.IL.1299

Appeal from the Circuit Court of Ford County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Petitioner Randy Gustafson filed a petition to transfer custody of his two minor daughters from respondent Paula Gustafson, n/k/a Paula Stone, to himself. The circuit court of Ford County denied the petition, and petitioner appeals.

Petitioner and respondent obtained a judgment for dissolution of marriage in June 1983. Under the terms of the dissolution, respondent was granted physical custody of the parties' two children. However, the marital settlement agreement stipulated that both parents were fit parents. Petitioner was granted reasonable visitation rights.

Respondent gave physical possession of the two children to her parents in August 1988. Since that time, she has not exercised her parental rights, and the children have remained in the care and control of the maternal grandparents, Robert and Mildred Helen Stone.

In September 1988, petitioner discovered the children had moved in with the Stones, and he filed his petition for change of custody. The grandparents filed a petition to intervene in the proceedings and obtain custody of the children, pursuant to section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)). The trial court denied the Stones' petition, and we affirmed. (In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, 536 N.E.2d 1359 (Gustafson I).) In that opinion, we held the grandparents did not have standing to seek custody of the children under section 601(b)(2) simply because they had been given physical possession by the custodial parent without the knowledge or consent of the noncustodial parent. Because even the non-custodial parent has a paramount right to the care, custody, and control of his children, a third party must provide more than just evidence of physical possession in order to show the children are "not in the physical custody of one of [their] parents." Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).

On January 11, 1989, while the matter of the petition to intervene was pending in our court, the trial court held the hearing on the petition to change custody. A detailed review of the testimony from that hearing is necessary in order to resolve the issues in this case.

Petitioner called respondent as his first witness. She testified that the parties' two daughters are 12 and 7 years old. Since 1983, respondent exercised her custodial rights to the children, as stated in the marital settlement agreement. Petitioner faithfully paid child support and exercised his visitation rights. In August 1988, respondent gave the girls to the Stones. She testified she did not intend to leave them with her parents permanently, but just until she could financially support them again. However, she was impeached with certain statements she made at the hearing on the petition to intervene, which implied the change in living arrangements was meant to be permanent. She now admitted making those statements, but stated, "It was not what I meant." Respondent admitted that she had not been exercising any parental rights since August 1988, and that she had no plans at the present time to take her children back.

Later, during her case, respondent testified again. She explained that she lost her job in July 1988, and she could no longer financially care for her children. She gave the children to her parents "until [she] could get back on [her] feet again." As of the date of the hearing, she had found no other employment and had little hope of doing so. She was receiving unemployment compensation. She claimed to have regular contact with her children, as the Stones lived nearby.

On cross-examination, respondent admitted she was living with a man to whom she was not married. The child support payments paid by petitioner go directly to ...


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