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December 16, 1996


Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois. No. 91 D 477. Honorable Brian M. Nemenoff, Judge, Presiding.

Released for Publication April 23, 1997.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Presiding Justice Breslin delivered the opinion of the court: Lytton and McCUSKEY, JJ., concur.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

We are asked in this appeal to determine whether the trial court erred when it modified a prior custody arrangement based on the custodial parent's homosexual relationship and the possibility that the children could experience social condemnation as a result of this relationship. We hold that the potential for social condemnation, standing alone, cannot justify a change in custody. Moreover, we find that the non-custodial parent failed to meet the burden of proof required to justify a modification of custody. Thus, for the reasons which follow, we reverse the trial court's judgment.

R.S. and S.S. married in 1983 and subsequently had two children. When the parties divorced in July 1991, they agreed that the mother should have sole custody of the children.

The father remarried in 1993. In August of that year he filed the instant petition for modification of custody. In his petition, the father alleged that a substantial change in circumstances had occurred because he had remarried and the mother had embraced an openly homosexual lifestyle, placing her sexual desires ahead of the emotional, moral and educational needs of the children by residing with her homosexual partner. He further alleged that her live-in partner had contracted mononucleosis and hepatitis and that it would be detrimental to the children's emotional, physical and moral well-being to have them remain in the mother's home.

The following facts were adduced at the hearings on the father's petition. The mother and her partner, J.S., who are both bisexual, met in 1993 at the hospital where they work. J.S. moved into the mother's home later that year. Soon after she moved in, J.S. contracted mononucleosis and hepatitis from one of the children, who had a virus. However, J.S. took several precautions and avoided infecting the remaining members of the household. She recuperated fully from this illness. In June 1994, the mother sold her home and moved with the children into J.S.'s home in a nearby town.

All of the parties, including the father, agreed that the children were well-adjusted and were not experiencing any problems. The father testified that the children have been reluctant to return to the mother following visitation. Likewise, the mother testified that the children have been reluctant to visit with the father.

The father testified that the children were doing well in school and extra-curricular activities and were getting a good education. He also testified that the children looked healthy, dressed appropriately and ate regularly. He testified that he believed the children were afraid of him. He was concerned that J.S. showed affection toward his daughter by hugging and kissing her. He stated that if he gained custody of the children, he would ask the court to restrict her contact with them.

The children's paternal grandmother testified that before they moved out of town, she babysat the children three to four days a week after school. She stated that both parents had told her that she would have less contact with the children as they grew older. However, she spent less time with the children after they moved. She testified that the mother told her she was free to visit the children, but she took the children only when the mother asked her to take them. She made it a practice, however, to speak to the children each night on the telephone.

The mother testified that, after returning from a visit with their father, her daughter informed her that her father and grandmother had asked questions about the mother's relationship with J.S. As a consequence, the mother explained the nature of her relationship with J.S. to her daughter in general terms while her son was present. She also acknowledged her relationship with J.S. to her daughter's teacher when the teacher asked about her daughter's relationship to J.S. The mother testified that she and J.S. sleep in the same room, but the children have never seen them involved in any sexual relations. The father expressed disapproval of the mother's openness to the children about her homosexual relationship and argued that the mother should not have revealed the nature of her relationship with J.S. to the children.

The son's teacher testified that he was an A student and had no discipline problems. She stated that he got along well with other students and had adjusted well to the move. The daughter's teacher testified that she was an excellent student and that the mother actively participated in school activities.

The trial court appointed T.W. Mathews, a clinical psychologist, to perform a psychological home study and evaluation of the parties and the children. According to Mathews' report, the psychological and emotional needs of the children were being served by the existing custodial arrangement. He found nothing that would lead him to conclude that a change in custody would serve the best interests of the children. Mathews testified that there were no psychological problems evident in the children and that all adults on both sides agreed that the children were developing satisfactorily. He believed that all of the ...

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