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01/10/95 MARRIAGE ALICE A. MARTINS

January 10, 1995

IN RE MARRIAGE OF ALICE A. MARTINS, PETITIONER-APPELLEE, AND EDWARD MARTINS, RESPONDENT-APPELLANT


Appeal from the Circuit Court of Kane County. No. 89-D-1840. Honorable Wiley W. Edmondson, Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the court: Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

The respondent, Edward Martins, appeals from an order of the circuit court of Kane County denying his petition to modify custody. The respondent contends that: (1) the trial court erred in not finding by clear and convincing evidence that the changes in circumstance which had arisen since the last custody order indicated that it would serve the best interests of the parties' minor children to be in the sole custody of the respondent; and (2) the trial court's decision to allow residential custody to remain with the petitioner was against the manifest weight of the evidence and constitutes an abuse of discretion.

The record reveals the relevant facts to be as follows. The petitioner, Alice A. Martins, and the respondent were married in Kane County, Illinois, on December 6, 1981. This was the first marriage for both parties. Two children were born to the parties during their marriage: Danielle, who was born on August 9, 1986, and Courtney, who was born on May 1, 1988.

The petitioner filed a petition for dissolution of marriage in the circuit court of Kane County on November 20, 1989. On May 11, 1990, judgment was entered dissolving the marriage and granting them joint custody of the children. Neither party has remarried.

On August 16, 1991, the petitioner filed a petition for modification of the judgment of dissolution of marriage, requesting that she be granted physical custody of the children. Thereafter, the respondent filed a response to the petition, requesting that physical custody of the children be granted to him. Following a hearing on the petition on August 22, 1991, the trial court ordered that the petitioner would have physical custody of the children during the week and the respondent would have physical custody of the children during weekends.

Shortly after the August 22, 1991, hearing, the petitioner informed the respondent that she was a lesbian. The respondent, without the petitioner's prior approval, later arranged for the minor children to receive counseling to assist the children with their questions concerning their mother's homosexuality among other things. The minor children began counseling in the summer of 1992, with Dr. Margo Warren-Kennedy, a clinical psychologist.

On March 4, 1993, the respondent filed a petition to modify custody. In his petition, the respondent alleged that there had been a substantial change in the petitioner's conduct and circumstances which was seriously endangering the physical, mental, moral or emotional well-being of the minor children. The respondent represented that the petitioner had related to him that she had been engaged in conjugal, homosexual relationships with persons residing in the same home as the minor children. He stated that the minor children had undergone treatment and counseling to cope with the stress brought upon them as a result of the conduct of the petitioner. He requested that the joint custody arrangements and residential custody time periods be modified by the court so that sole custody of the minor children be awarded to him.

In response to the respondent's petition to modify custody, on April 8, 1993, the court appointed Marmarie Kostelny as guardian ad litem (hereafter guardian) for the minor children and ordered that she file a report with the court. The guardian conducted an investigation consisting of personal interviews with the petitioner, the respondent, and the minor children, a telephone interview with Dr. Warren, a review of the children's school report cards, and a review of all available court records. The guardian filed her report with the court on August 26, 1993. The report reflects, in part, that since the dissolution of the parties, several roommates had resided in the petitioner's three-bedroom home. The petitioner's lesbian lover, Tracy Schwartz, had resided in the home for approximately two years; a lesbian by the name of Brook had resided in the home for two months; and a heterosexual named Helen had also resided in the home. Two other lesbians, Michelle and Theresa, frequented the home, but had not lived there. The minor children expressed concern regarding all of the women coming in and out of the house. They perceived that their mother was less attentive to them in comparison to her friends and they did not like to have baby-sitters. In her report, the guardian recommended that joint custody be continued, but that primary physical custody be transferred to the respondent. Her recommendation was based upon the stated preference of the minor children to reside with their father on weekdays and their belief that if they were only to see their mother on weekends they would be more of a priority to her.

Trial commenced on December 6, 1993. Since more than two years had passed since residential custody of the minor children had been awarded to the petitioner, the court determined on the opening day of trial that it would apply the best-interests-of-the-children standard in considering the respondent's petition to modify custody.

The respondent testified in his case in chief that he lived alone in a home located across from a forest preserve in Rockford, Illinois. He further testified that he was employed as a loan officer and that this position provided him with a flexible work schedule. The respondent testified concerning the petitioner's various roommates, stating that at the time the petitioner was awarded residential custody of the minor children in 1991 the petitioner was residing with Tracy Schwartz. He testified to his belief that the petitioner's relationship with the minor children had diminished since January 1992 and that since that time on occasion the children had not wanted to return to the petitioner's house after visitation with him. He also testified that in February 1992 he began to notice a difference in the children's hygiene. He noted a change in the children's eating habits and cited to various occasions when he believed the children's medical needs were not met by the petitioner. The respondent stated that during a typical visitation weekend he takes the children to counseling, the children help feed the animals on his homestead and attend horse shows, and he prepares all meals that the children eat at home. He testified that he had been active in the children's current schooling and, if he were awarded custody of the children, they would attend St. Patrick's school, located nearby.

Beverly Martins, the respondent's mother, testified on behalf of the respondent. Martins testified that she saw the minor children weekly and from her observations characterized the respondent's relationship with the children as "great." She stated that in November 1993, when the children were visiting with her, they told her that they did not want to return to the petitioner's house. She also testified that she had noted a change in the children's behavior in the past two years and cited to instances of peculiar behavior in the children. On cross-examination, Martins testified that she had testified at a previous custody hearing that the petitioner was a good person and had been a good mother up to the time of the dissolution.

The respondent next introduced the testimony of Dr. Warren, the children's therapist. Dr. Warren testified that she is a clinical psychologist, with a primary focus on working with children, including those with emotional problems associated with dissolution. She stated that she had treated hundreds of children in her private practice. She testified that, the respondent had arranged for her to counsel the minor children since May 31, 1992. Dr. Warren stated that she completed a psychological evaluation of the children, which included intellectual tests. She testified that the test results showed both children to have a superior range of intelligence. Dr. Warren cited to instances where Danielle told her that she wanted to live with her dad and go to school there and that she could visit her mom on weekends when they would have more time together. Dr. Warren cited to instances where Courtney told her that she wanted to spend more time with her mom, and not with the baby-sitter. She testified that in 1992 ...


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