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In re Estate of DaFoe

August 02, 2001

IN RE ESTATE OF NICHOLAS SCOTT DAFOE, A MINOR (JOHN AND URSULA KLAPETZKY, RESPONDENTS-APPELLEES)
IN RE MARRIAGE OF MARGARETA E. DAFOE, PETITIONER-APPELLEE, AND RONALD A. DAFOE, JR., RESPONDENT-APPELLANT



Appeal from the Circuit Court of St. Clair County. Nos. 91-D-1349 & 95-P-15 Honorable Robert J. Hillebrand, Judge, presiding

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

Margareta E. Dafoe and Ronald A. Dafoe, Jr., were married on June 5, 1990. Their only child, Nicholas, was born on May 19, 1991. The marriage was dissolved on January 17, 1992, in cause No. 91-D-1349. At that time, both the mother and the father were active in the military, and the parties agreed that the mother would have sole custody of Nicholas. After the divorce, Nicholas and his mother lived in South Carolina for approximately four months and then returned to Illinois and lived with the mother's parents, Nicholas's grandparents, John and Ursula Klapetzky. Except for a few brief periods in 1991 and 1992, Nicholas and his mother resided in Mascoutah with the grandparents. In January 1995 the mother moved to Texas; however, Nicholas remained with the grandparents in Mascoutah. On February 17, 1995, the grandparents, with the written consent of the mother, were appointed guardians of Nicholas in cause No. 95-P-15.

The father moved to upstate New York after he received his military discharge. He had little contact with Nicholas over the years and did not object to the grandparents being appointed guardians. In fact, during Nicholas's first five years, the father barely saw Nicholas. In 1992 the father only had Nicholas for a weekend. He did not see Nicholas again until the spring of 1994. He next saw Nicholas in November 1996. On March 26, 1997, the father filed a petition to modify custody and terminate guardianship. After that, he saw his son for two weeks in June 1997 and again at Christmas time in 1997. He married his second wife on May 31, 1997, and they later had a son. The father's new wife was instrumental in the father's decision to seek custody and has been extremely supportive. Over the years, the father usually paid $300 per month in child support as originally agreed upon in the divorce decree. However, there were months when the payment was not made or the checks bounced and had to be resubmitted for payment. The father failed to pay any of Nicholas's medical bills even though he had agreed to do so as part of the dissolution agreement.

The divorce case, No. 91-D-1349, and the guardianship case, No. 95-P-15, were consolidated on the father's motion. Discovery ensued in the matter. Both private and court-appointed mental health experts filed reports. After a three-day trial, the trial court entered an order that stated in pertinent part as follows:

"B. That it was the burden of proof of the grandparents, JOHN and URSULA KLAPETZKY, to overcome the superior right of the natural parent, RONALD DAFOE, with regard to the custody of the minor child, NICHOLAS DAFOE.

C. That the factors the Court weighed most heavily in making its determination herein were:

a) The minor child has for all, but a few months, of his life lived with the Additional Respondents, JOHN and URSULA KLAPETZKY, and has been integrated into a stable, loving environment.

b) The minor child has special needs and difficulties, diagnosed in part as ADHD, which require a high degree of stability above and beyond normal parameters and which have been, and currently are better, met by the grandparents."

The trial court found that the grandparents overcame the presumption in favor of the father and met their burden of proof, and the court awarded sole custody to the grandparents. The trial court noted, inter alia, that it was in the best interest of Nicholas that his relationship with his mother and father continue to be as close as possible. The court, therefore, granted the mother visitation during the school year, as agreed upon with the grandparents, and granted the father visitation, which included 10 weeks in the summer, as well as whenever the father is in the Mascoutah area, provided that he give the grandparents reasonable telephone notice. Both the mother and the father were ordered to pay child support, and the grandparents were ordered to maintain health insurance for Nicholas. Additional facts necessary for an understanding of our determination herein will be discussed in the analysis portion of our opinion.

In this pro se appeal, the father asks us to reverse the award of custody to the grandparents, to remand the matter to the trial court with directions to award custody to the father, and to revise the visitation and financial components of the judgment. The father is adamant that the trial court applied the wrong burden of proof. The mother has not filed a brief, but she concurs with the brief filed by the grandparents and notes that she agrees with the trial court's judgment granting custody to the grandparents. In this appeal, an order was entered, on our own motion, granting the father 10 days to show cause why the reports of proceedings that were filed out of time and without leave of court should not be stricken. The father has shown just cause, and therefore, we refuse to strike the reports of proceedings, and we consider these reports as a part of the record below. The grandparents have filed a motion to strike the argument section of the father's brief and a motion to strike the statement of facts of the father's brief. This court ordered that these motions be taken with the case. This court now denies both motions.

For the following reasons, we affirm.

ANALYSIS

The father cites to Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), in support of his proposition that a third-party non-parent, such as the grandparents herein, must meet a "substantially heightened burden of proof" in order to be entitled to an award of custody. The Troxel court pointed out that the due process clause "includes a substantive component that 'provides heightened protection against government interference with certain fundamental rights and liberty interests.' " Troxel, 530 U.S. at 65, 147 L. Ed. 2d at 56, 120 S. Ct. at 2059-60 (quoting Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct. 2258, 2267 (1997)). The father argues ...


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