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July 11, 1996


Appeal from Circuit Court of Sangamon County. No. 91D544. Honorable Stuart H. Shiffman, Judge Presiding.

Released for Publication July 11, 1996. As Corrected August 29, 1996.

Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J., Honorable James A. Knecht, J., Concurring. Presiding Justice Cook delivered the opinion of the court:

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

The reply brief in this case was due May 30, 1996. Oral argument was heard June 18, 1996. Because we reverse an award of custody, we have given this case priority over our other work.

The parties were married in April 1976. They have two children, Brandon (born May 18, 1981) and Lauren (born July 1, 1985). Petitioner, Mary, is a registered nurse. Respondent, Thomas, is a carpenter. The parties lived in Staunton until December 1989, when they separated and Mary moved with the children to Springfield. The parties attempted reconciliation at various times, and in March 1991, decided to build a house in Chatham. Mary and the children moved into the house in June 1991, but Thomas did not.

Mary filed a petition for dissolution of marriage on June 21, 1991. On October 21, 1991, the trial court entered an agreed order awarding temporary custody to Mary. On July 17, 1992, the court entered a bifurcated judgment of dissolution which reserved permanent custody and other issues. In August 1992, Mary married Michael Sprinkle, and in March 1994, Thomas married Bonnie Hefer. In April 1994, Thomas and Bonnie moved to Indianapolis, where he is employed as a carpenter at the Indianapolis Speedway. Thomas was to have had two weeks of visitation during the summer of 1994, but after problems developed with his return of the children Thomas gave up his second week of visitation. Thomas and Bonnie had a daughter born in February 1995. Thomas testified he reduced his phone calls to Brandon to once per week in the period immediately prior to trial because money became too tight. Testimony was heard on April 3, 1995, and on April 19, 1995. At that time Thomas had not seen the two children since Christmas. Also on April 19 the court conducted an in camera interview of Brandon, then 13, and Lauren, then 9.

On May 22, 1995, the trial court entered its memorandum opinion and ruled as follows regarding custody:

"The major dispute between the parties centers around custody of Brandon and Lauren. During the pendency of this litigation Mary Catherine has been the primary custodian of the children. Thomas has sought to maximize his involvement with the children although his move to Indianapolis, Indiana[,] has somewhat limited his time with the children. Both parties presented substantial testimony on the issue of custody and on the resolution of the question concerning the best interests of the children. That testimony established that both parents have strengths and weaknesses as parents. When the evidence with respect to custody is closely balanced, the Court believes that greater deference should be given to the wishes of the children as long as the Court is satisfied that the children's wishes are based upon factual matters and not merely some hopeful thought that one parent will grant the children more favors. In the present case the Court believes from the evidence presented at trial that the concerns, beliefs, and the wishes of the children as expressed in the in camera interviews are bona fide. Accordingly the Court finds that it is in the best interest of the minor children that custody be awarded to Thomas Hefer."

Mary then filed a motion to reopen the evidence alleging that the children had been unduly influenced by Thomas and his family prior to the in camera interviews. Mary's affidavit, attached to the motion, stated that she had spoken to Lauren after the court ruled, and Lauren told her about two conversations with Bonnie before the interviews. First, Lauren said that Bonnie "had taken Court papers and laid them on the table to her about the case *** saying look what your mother is trying to do." Second, Lauren said she was "told to tell the judge she wanted to live with her father and not tell anyone of the discussion if asked." An unsent letter from Brandon and Lauren to Thomas and Bonnie was attached to the motion. In it the children asked, "Do you know when [we're] going to the judge?" Also attached to the motion was a letter from Thomas' mother to the children stating "if possible, write down things you want to say to the judge." On September 5, 1995, the trial court denied the motion to reopen the evidence, but did find Thomas in contempt for denying visitation in late August 1995.

It is unfortunate that after the temporary order was entered October 21, 1991, the permanent order of custody was not entered until May 22, 1995. "Custody proceedings shall receive priority in being set for hearing." 750 ILCS 5/606(a) (West 1994). The parties were free to remarry after the court's order of July 17, 1992, but custody was left hanging until 1995. Even if the parties wanted additional time to argue property issues, there should have been a permanent decision on custody within a reasonable time after the case was filed. It is stressful to children, and to others as well, to leave this issue up in the air. The temporary order in this case was an agreed order. In cases where there is no agreement and a substantial amount of evidence is heard on a temporary order, the trial court may be well-advised to make its permanent decision after the first hearing and not conduct a second hearing on a permanent order. See In re Marriage of Goldman, 196 Ill. App. 3d 785, 796-97, 554 N.E.2d 1016, 1024-25, 143 Ill. Dec. 944 (1990).

The trial court in its custody decision gave controlling weight to the preference expressed by the children in the in camera hearing. One of the factors which the court may consider in determining custody in accordance with the best interest of the child is "the wishes of the child as to his custodian." 750 ILCS 5/602(a)(2) (West 1994). Nevertheless, there are problems with making the decision of the child the determinant. For one thing, such an approach places a tremendous amount of pressure on the child.

"It is seldom in a child's interest to be asked to choose between his parents or to believe that his expression of preference will influence the judge's decision. Children often lack the maturity to make a wise choice. And choosing tends to create feelings of disloyalty toward one parent which can be quite devastating for the child as well as for the mother or father whom he 'rejects.' Indeed, this is why the law requires that the custody decision in the end be made by adults." S. Goldstein & A. Solnit, Divorce & Your Child 67 (1984).

The more sensitive courts do not specifically ask a child whether he prefers to live with his father or his mother. In re Marriage of Balzell, 207 Ill. App. 3d 310, 314, 566 N.E.2d 20, 22, 152 Ill. Dec. 492 (1991). A better way than an in camera hearing to get the child's preferences before the court may be through admission of the child's hearsay statements, through the testimony of a guardian ad litem, or through professional ...

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