Appeal from the Circuit Court of Lee County. No. 90--D--5
The opinion of the court was delivered by: Justice Galasso
Honorable Tomas M. Magdich, Judge, Presiding.
The respondent, Jennie L. Childers (Jennie), appeals from an order of the circuit court of Lee County transferring physical custody of Trevor Childers (Trevor) from Jennie to the petitioner, Rand E. Childers (Rand). On appeal, Jennie raises the following issues: (1) whether the trial court misapplied the presumption favoring the present custodial arrangement; (2) whether the trial court erred in determining that Trevor had been integrated into Rand's new family; and (3) whether the trial court's transfer of the physical custody of Trevor from Jennie to Rand was against the manifest weight of the evidence. We reverse and remand with directions.
The following facts are pertinent to our resolution of the issues in this case.
Jennie's and Rand's marriage was dissolved on March 16, 1990. The judgment of dissolution of marriage provided that the parties would have joint custody of Trevor, the parties' minor child, with Jennie having physical custody of Trevor who was then four months of age. Trevor resided with Jennie until August of 1996. In August 1996, the parties agreed that Trevor would live with Rand. This arrangement continued until November 1996, at which time, due to Rand's separation from his wife, Tina, Trevor returned to live with Jennie. By March 1997, Rand had returned to live with Tina and their son, Riley.
According to Jennie, at about age five, Trevor began displaying signs of attention deficit disorder (ADD), which Jennie was familiar with because she works with adults who suffer from behavioral disorders. Trevor demonstrated a very low frustration level and had toilet accidents to obtain attention. He also was very disorganized and needed to be kept on a schedule. Trevor's first grade teacher suggested that he might be borderline ADD. Jennie discussed the situation with Rand. However, Rand believed that all Trevor needed was his father and that Trevor did not need to see a doctor. Rand told Jennie that she was free to obtain counseling for Trevor, but that he would not participate in any way. On July 22, 1997, the parties and Trevor participated in a trophy night for the T-ball activity that Trevor played. At the time, Trevor was soiling his pants on a regular basis and had done so that evening. In order to avoid going home with Jennie, Trevor asked to go home with his grandmother. When Jennie refused, Trevor threw a temper tantrum. According to Rand, Jennie responded by stating that she could not deal with Trevor's temper tantrums. Rand suggested that Trevor stay with him. Jennie responded that she would have to think about it because she was not sure that she was ready to give Trevor up. Several days later while Trevor was visiting Rand, Trevor called Jennie and asked if he could stay for dinner with Rand. Jennie became very angry and told Trevor that he could stay at Rand's forever. According to Rand, at some point, Jennie agreed that it would be all right for Trevor to stay with Rand since she was having a hard time dealing with his temper tantrums and she could not deal with Trevor any more. After moving in with Rand, Trevor's problem with soiling his pants had greatly improved until these court proceedings began.
According to Jennie, after taking Trevor home from the trophy night, she received a call from Rand, who suggested that Trevor come and stay with him for a while to see if Rand could re-establish his relationship with Trevor. Jennie believed the relationship had suffered during the period when Rand was separated from Tina because Trevor did not have as much contact with Rand as Trevor desired. Rand expressed his belief that Trevor was acting out because he wanted or needed more attention from Rand and that Trevor's behavior problems would end if Trevor came and stayed with him. Jennie denied that she had told Rand that she could not handle Trevor any more and that Rand could take him. Jennie did tell Rand that she believed that Trevor suffered from ADD and needed counseling to resolve his behavioral problems. She told Rand that she could not handle the situation that was caused by Trevor's behavioral problems. After thinking about it a few days, she agreed that Rand should have Trevor during the week. However, there was no mention that the arrangement was to be permanent.
In October 1997, Rand contacted Jennie and agreed with her that Trevor's behavioral problems needed to be addressed. In January 1998, the parties took Trevor to see Dr. Bondy, who diagnosed Trevor as suffering from ADD and prescribed Ritalin. According to Rand, Dr. Bondy indicated that Trevor needed a more structured environment, which Rand believed he was better able to provide. Rand explained that, while living with Jennie, Trevor never knew where he was going to sleep at night since he sometimes slept over at either of his grandmothers' houses or with Jennie's roommate. Now at Rand's, Trevor always knows where he is going to be Monday through Friday. On the other hand, Jennie understood from what Dr. Bondy said that Ritalin was prescribed for Trevor to keep him organized at school.
In its memorandum opinion, the trial court found that the following facts had been established by clear and convincing evidence:
"1. Jennie voluntarily relinquished her role as primary custodian of Trevor. In July of 1997, she said she can't deal with his 'fits anymore' and told Trevor 'You can stay there forever.' Jennie did not take any measures to bring Trevor back into her household until the start of this modification proceeding.
2. Trevor has now become integrated into the family of Rand, his step-mother and brother Riley.
3. This is a situation where the parties by their conduct have modified the custody arrangement.
4. These facts establish a material change in circumstances." (Emphasis in original.)
The trial court noted there was a legislative presumption in favor of the present custodial arrangement to promote stability and ...