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April 22, 1994


Appeal from the Circuit Court of Cook County. Honorable, Richard S. Kelly, Judge Presiding.

McNULTY, Murray, Cousins

The opinion of the court was delivered by: Mcnulty

Justice McNULTY delivered the opinion of the court:

Petitioner Linda Prince and respondent Jaime Herrera were divorced in 1989, at which time they agreed that they would have joint custody of their daughter, Christina, who was born on June 28, 1986. In 1992, Linda and Jaime each sought sole custody of Christina since joint custody was no longer practical. After a hearing on this matter, the trial court awarded sole custody of Christina to her father. Linda appeals from this trial court decision.

Linda testified at trial that she resides in an apartment in Chicago with her husband, Dennis Pin. Dennis and Linda were married in December 1991. Dennis' mother, Bianca Pin, her husband, and two adult children live ten minutes away from Linda's apartment. Bianca Pin takes care of Christina when she is not in school and Dennis and Linda are at work. While Bianca Pin cares for Christina, Christina plays with Dennis Jr., Bianca Pin's grandson.

Linda testified that she paid for Christina's curriculum and day care at Kiddy Care and that Christina spends six hours a day in day care and three hours a day in class. Linda stated that even though she is aware that Christina could have been taken care of at Jaime's house in the afternoon, she would rather leave Christina with strangers at day care because it is a structured program. Linda also testified that she never asked Jaime to reimburse her for the cost of Christina's schooling and day care. Linda stated that she intends to enroll Christina at Our Lady of Fatima school.

Jaime Herrera testified that he lives in Chicago on the second floor of a two flat owned by his sisters. Jaime's sister Olga Porras, her husband, and their son live in the first-floor unit and Jaime, Christina and Jaime's mother live on the second floor. When Jaime is at work, his sister, Olga Porras, or his mother takes care of Christina. Since the divorce, Jaime has not missed any of his visitation. Jaime testified that he registered Christina for school. The school is two blocks away from his house and he would bring Christina to school in the morning and his sister would pick Christina up in the afternoon. Jaime testified that Christina does not display any adverse behavior and her behavior has not changed over the last couple of years.

Jaime testified that there is nudity in Linda's home, that Dennis Pin is present in front of Christina in his underwear, and that Linda and Dennis fight and one time Linda kicked Dennis out of the house. Jaime testified that he once charged Linda's husband Dennis with assault, and that Dennis was found not guilty. Jaime brought police to Linda's house last Christmas to obtain custody of Christina. No charges followed that incident.

The trial court also heard the testimony of Andre Johnson, a Cook County supportive services case worker. Mr. Johnson issued a report after he had interviewed and observed Christina in both parents' households. Mr. Johnson testified that he spent approximately two hours in each home. Mr. Johnson testified that Christina was very playful and interactive with family members in both homes. Mr. Johnson also testified that he contacted Christina's school in order to verify Linda's allegation that Christina frequently missed school when she was in her father's care. Mr. Johnson found out that since 1991, Christina had missed ten or more days of school while in her fathers care. Jaime explained to Mr. Johnson that on one of those occasions, Christina stayed home to see some relatives visiting from out of town and on one or two other occasions, Christine was ill. Jaime gave no excuse for Christina's other absences.

Mr. Johnson testified that he interviewed Jaime, and Jaime informed him that Linda had several male companions around Christina in the past and that Linda had sexual relations with these men. Linda denied these allegations, and consequently, Mr. Johnson found these allegation unfounded. Jaime told Mr. Johnson that Christina told him that Linda and her current husband had an altercation and that Linda had been stabbed. Linda denied these allegations and sent Mr. Johnson a letter from her doctor stating that she had no stab wound or any other injury to her body. Mr. Johnson therefore concluded that Jaime's allegation was unfounded. Jaime told Mr. Johnson that Linda was an unfit mother, she had physically abused Christina and that he had reported Linda to the Department of Children and Family Services (DCFS). Mr. Johnson received a computer printout from DCFS, listing all past and current cases and found neither parties' name on the printout.

During Mr. Johnson's interview with Linda, she informed Mr. Johnson that Jaime, as well as other family members make derogatory comments about her in Christina's presence. Mr. Johnson found no evidence of this. Linda informed Mr. Johnson that Jaime had not taken Christina to school on several occasions and that on one occasion, Jaime had forgotten to pick Christina up at school and arrived late to pick her up.

Mr. Johnson recommended that Linda be Christina's primary care giver based primarily on the fact that Jaime was unable to get Christina to school on several occasions and also on the fact that Jaime made unfounded allegations against Linda. Mr. Johnson was also influenced by his determination that Linda had been primarily responsible for Christina's education. Mr. Johnson noted in his report that Jaime "would go to any length to destroy [Linda's] character" and that Jaime's "behavior may eventually have a negative influence on Christina's overall welfare." Mr. Johnson recommended that Jaime immediately receive counseling to resolve past issues.

Dr. Schulman, a child psychologist, met with Linda and Christina and with Jaime and Christina and then filed a written report and testified at trial. During the meetings, Christina sat of each parent's lap, which indicated to Dr. Schulman that she was bonded to each parent. Dr. Schulman stated that Christina clings to her mother possibly because she feels more comfortable to express her feelings when with her mother. Dr. Schulman determined from his analysis of Linda and Jaime that they both conducted themselves entirely within the normal limits. According to Dr. Schulman, Christina was comfortable with both parents, but more vocal with Jaime. Dr. Schulman found Linda to be dedicated to Christina and concerned about her future. In addition, Dr. Schulman found that Linda has greater sensitivity, understanding and ability to discern Christina's problems.

Linda reported to Dr. Schulman that Christina suffers from nightmares. Jaime told Dr. Schulman that Christina had no nightmares while at his home. According to Dr. Schulman, Christina may have nightmares when with her mother, but not when with her father because she is more comfortable with her mother. Dr. Schulman was skeptical of Jaime's report that Christina exhibited no difficult behavior while at his house since it is normal for children that age to exhibit some difficult behavior at times. Dr. Schulman stated ...

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