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April 15, 1994


Appeal from the Circuit Court of Tazewell County, Illinois. No. 91 D 111. Honorable C. Brett Bode Judge, Presiding

Released for Publication May 19, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Respondent, Otto Arcaute, appeals from an order of the circuitcourt awarding custody of the parties' minor child, Mercedes, to petitioner, Deena Arcaute (now Warner). We affirm.

Petitioner and respondent were married in December of 1988. Mercedes was born in July of 1989. On February 14, 1991, petitioner filed a petition for dissolution of marriage. A temporary custody arrangement was established whereby each parent had custody of Mercedes on alternating weeks until a permanent custody determination could be made.

Petitioner failed to appear for hearings and failed to comply with discovery requests. As a result, a default judgment was entered on September 26, 1991, which dissolved the marriage of the parties, divided the marital assets, awarded permanent custody of Mercedes to respondent, and awarded certain visitation rights to petitioner.

On October 23, 1991, petitioner filed a motion to vacate, modify or reconsider the September 26 order. On June 22, 1992, the court denied petitioner's motion in regards to the property settlement provisions and the judgment of dissolution. However, on the issue of custody of Mercedes, the court granted petitioner's motion and modified the provisions awarding custody to respondent and visitation to petitioner so as to make those provisions temporary only. The court found that "the best interests of the minor must be taken into account and both potential custodial parents should be given their day in court."

A custody hearing was held on February 18, 19 and 22, 1993. On March 18, 1993, the court issued a detailed order which included 29 separate factual findings. The court awarded custody of Mercedes to the petitioner with liberal visitation to respondent. Respondent's motion for reconsideration was denied, and this appeal followed.

Respondent first argues that the trial court erred in failing to apply section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/610 (West 1992)) which provides that a custody judgment cannot be modified within two years of its entry unless the court determines that the child's present environment seriously endangers his or her physical, mental, moral or emotional health. Respondent argues that since the trial court made no such findings, it should not have "modified" the prior custody order. Respondent's argument is meritless.

The trial court's March 18 order awarding custody of Mercedes to petitioner was not a modification of a prior custody order. The only custody order in effect at that time was a temporary award of custody to respondent until a custody hearing was held. "A temporary order is provisional in character and continues only duringthe pendency of the action. When the action becomes final, the temporary order has fulfilled its purpose and is superseded by the provisions of the final decree." ( In re Marriage of Simmons (1991), 221 Ill. App. 3d 89, 91, 581 N.E.2d 716, 718-19, 163 Ill. Dec. 562.) The only modification of a custody order in this case occurred on June 22, 1992, when the trial Judge modified the provisions of the default judgment dealing with custody making them temporary rather than permanent in order to allow petitioner to have a hearing on the issue. The order from which respondent appeals was not a modification of a previous custody judgment. Therefore, section 610 of the Act is inapplicable.

Respondent next argues that the trial court improperly relied on the "tender years" doctrine in awarding custody to petitioner. As respondent points out, the "tender years" doctrine, an arbitrary presumption that the mother is the proper custodial parent of children of tender years unless she is proven unfit, has long been rejected by the courts of this State. (In re Marriage of Bush (1988), 170 Ill. App. 3d 523, 525 N.E.2d 163, 121 Ill. Dec. 357; In re Custody of Switalla (1980), 87 Ill. App. 3d 168, 408 N.E.2d 1139, 42 Ill. Dec. 430; Strand v. Strand (1976), 41 Ill. App. 3d 651, 355 N.E.2d 47.) Contrary to respondent's assertions, the record does not indicate that the trial Judge applied this presumption in this case.

Respondent first notes that the court used the term "tender years" in its order. The court stated, "Both parents are fit and proper persons to have custody and responsibility for a child of tender years." This court has held that "the use of the term 'tender years' does not necessarily indicate that the court was engaging in the presumption, contrary to law, that the mother is the proper custodian * * *." ( In re Custody of Switalla (1980), 87 Ill. App. 3d 168, 173-74, 408 N.E.2d 1139, 1143, 42 Ill. Dec. 430.) On the contrary, the use of the term "tender years" in this case indicates that the court was not engaging in a presumption in the favor of the mother since the court found both parents to be proper custodians of a child of tender years.

Respondent also relies on the following statement from the court's written order as evidence that the court ...

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