Appeal from the Circuit Court of Du Page County. No. 03-D-1116 Honorable C. Stanley Austin, Judge, Presiding.
The opinion of the court was delivered by: Justice Gilleran Johnson
The petitioner, Christopher Gambla, appeals, pro se, from the September 1, 2005, order of the circuit court of Du Page County dissolving his marriage to the respondent, Kimberly Woodson. On appeal, Christopher argues that the trial court erred in awarding custody of the parties' minor child, Kira Marie, to Kimberly.
The parties were married on May 11, 2002, in Atlanta, Georgia. Christopher is Caucasian, and Kimberly is African-American. Shortly after they married, the parties moved to Illinois, along with Che Woodson, Kimberly's then six-year-old son from a previous marriage. One child was born to the parties' marriage: Kira Marie, born on October 19, 2002. On May 13, 2003, Christopher filed a petition for dissolution of marriage in which he sought sole custody of Kira. On May 14, 2003, Kimberly filed a counterpetition for dissolution of marriage in which she also sought sole custody of Kira.
Between May 31, 2005, and July 5, 2005, the trial court conducted 15 days of trial, at which the parties, one court-appointed expert, three experts retained by Kimberly, and several character witnesses testified. Their testimony is as follows.
A. Christopher's and His Witnesses' Testimony
Christopher testified that he lives in West Chicago, Illinois, along with his sister and her husband and their three children. Christopher's mother lives in an apartment on the lower level of the residence. Christopher has owned the home since August 1997. Christopher's office is in his home. He is a transportation consultant with Lea and Elliot, a company that designs and implements railway systems worldwide. Christopher has worked for Lea and Elliot since March 2001. Christopher has an undergraduate degree in business from the University of Dubuque, Iowa, and a master's degree in business from Benedictine University in Lisle, Illinois.
Christopher started dating Kimberly in March 2000. The parties stopped dating in November 2001, but resumed the relationship in January 2002. Kimberly became pregnant in February 2002. At this time, Kimberly was residing in Georgia and Christopher was residing in Texas. After the parties relocated to Illinois in June 2002, they moved into the lower-level apartment of Christopher's home in West Chicago. Christopher's mother moved up to the main level with his sister and her family. Christopher did not observe any problems between Kimberly and his mother or between Kimberly and his sister and her family.
In September 2002, Kimberly informed Christopher that she was unhappy living in the West Chicago home, because she felt uncomfortable around his family. Subsequently, the parties moved into an apartment in Wheaton. According to Christopher, he was involved in Kimberly's prenatal care and was present for the birth of Kira at Central Du Page Hospital. The parties had planned to have a home birth. After complications ensued during Kimberly's labor, Christopher was instrumental in getting Kimberly to the hospital.
Following Kira's birth, Kimberly started to exhibit bizarre behaviors that led him to suspect she was depressed. A few weeks after Kira's birth, Kimberly insisted on taking Che and Kira to Atlanta to visit her family for Thanksgiving. Although he did not agree with the trip, he accompanied Kimberly. On the drive to Atlanta, Kimberly refused to eat or speak. About a month after Kira's birth, Christopher came home and found Kimberly sleeping in the closet, curled up in a fetal position. A few months after Kira was born, Christopher and Kimberly got into a verbal disagreement that escalated into Kimberly striking Christopher with a shirt while he was holding the baby.
Christopher testified that he and Kimberly frequently disagreed regarding the care of Kira. For example, ten days following Kira's birth, Kira needed treatment because of a discharge from her right eye. Kimberly refused a medicine, known as erthromycin, for Kira's eyes. Kimberly told Christopher that she did not want Kira to have the drug because she feared that it would interfere with breast-feeding. Kira has since had eye problems such as conjunctivitis and styes. Additionally, Kira was not given her immunizations on schedule, because Kimberly did not want her to receive all the immunizations at once. Christopher also disagreed with several trips that Kimberly took with Kira to New Jersey, North Carolina, Atlanta, and Alabama, because of Kira's young age.
Christopher testified regarding a three-week trip that Kimberly took with Che and Kira to Atlanta in May 2003 to be with her mother following her mother's cataract surgery. Christopher had planned to fly to Atlanta on the weekends so that he could spend time with Kira. The second weekend that Christopher flew to Atlanta, he was unable to visit with Kira, because Kimberly had taken her on a road trip to Birmingham, Alabama. Christopher cancelled his trip to Atlanta the third weekend because Kimberly informed him that she would be visiting family in Charlotte, North Carolina. He instead flew down on a Thursday. Christopher went to Kimberly's Georgia home, but was not permitted to enter. Kimberly initially refused to let Christopher take Kira, but eventually allowed him to take Kira to his hotel for a few hours.
In June 2003, when Kimberly returned from her trip to Atlanta, she moved out of the marital bedroom and into Che's room, whom she had left in North Carolina to attend school. Kimberly did not tell Christopher for several months what had happened to Che. Christopher always had enjoyed various activities with Che, such as flying kites and going to the park. Kira's crib remained in the marital bedroom. Kimberly cared for Kira during the day while Christopher was at work, and Christopher cared for Kira in the evening and on the weekend. During his evening time, Christopher would feed and bathe Kira and prepare her for bed. Kimberly was breast-feeding Kira and would pump breast milk for Christopher to feed Kira.
In February 2004, about the time Dr. Daniel Hynan performed a custody evaluation on the parties, Kimberly started feeding and bathing Kira and preparing her for bed. Christopher asked to resume these duties but Kimberly would not agree. Kira did continue to sleep in Christopher's room. Christopher eventually began to take Kira to his West Chicago home so that he could have more parenting time with her. Kimberly and Kira moved out of the apartment in September 2004. Kimberly did not tell Christopher where she was moving.
Christopher recalled an incident in March 2004 when he returned from work and noticed that Kira had red blotches all over her body. He asked Kimberly what had happened to Kira, and Kimberly responded that she did not know. Christopher went to the drug store and purchased some children's Benadryl. Christopher administered to Kira a dose of the Benadryl and her symptoms improved. The following day, Kimberly told Christopher that Kira had eaten a peanut butter cookie. Christopher knew that Che was allergic to peanuts, so he took Kira to Wheaton Pediatrics to have her tested for allergies. Dr. Grunewald diagnosed Kira as allergic to peanuts. According to Christopher, Kira receives her allergy medication only when she is with him.
Christopher testified that Kimberly continues to breast-feed Kira but no longer provides Christopher with any breast milk to feed her. Christopher further testified that he and Kimberly disagree about whether to feed Kira meat and whether to provide Kira with fluoridated water. Christopher would like Kira's diet to include chicken, pork, beef, and fish. He also would like Kira to have fluoridated water. According to Christopher, Kimberly is very concerned about the cost of diapers and does not change Kira as often as he does. Kimberly often accuses Christopher of being controlling.
Dr. Daniel Hynan, whom the parties stipulated to be qualified as an expert, testified that he was a licensed psychologist ordered to perform a custody evaluation regarding the instant case. Dr. Hynan prepared a report recommending that Christopher be given sole custody of Kira. In his report, Dr. Hynan noted that Kimberly is a full-time homemaker. Kimberly has family in Charlotte, North Carolina, and in the Atlanta, Georgia, area. Kimberly was seeking to remove Kira to North Carolina to be near her family there. Kimberly intends to seek full- or part-time employment as a nurse and hopes to be able to share a nanny with her niece, who is pregnant. Kimberly indicated in an interview with Dr. Hynan that she had experienced depression after she delivered Kira but that she opted not to pursue medication, because she was breast-feeding. Kimberly also indicated that she is interested in pursuing a holistic or alternative approach to Kira's health care and was reluctant to have Kira immunized.
Kimberly completed the Minnesota Multiphasic Personality Inventory- 2 (MMPI-2), a test that measures emotional and personality functioning. Kimberly answered questions in a somewhat defensive manner that is associated with limited personal insight. Despite her defensiveness, Kimberly had a significant elevation on a scale that indicates impulsiveness, difficulty with authority, and limited frustration tolerance. She also had an elevation on a supplemental scale that indicates the use of repression as a psychological defense, and she had an elevation close to the standard cutoff point on a scale that indicates low impulse control.
Kimberly also completed the Adult-Adolescent Parenting Inventory, a measure of parenting attitudes and beliefs. Kimberly scored better than average on scales that measure empathy, disciplinary style, and maintaining an appropriate parental role. She scored average on a scale that measures the appropriateness of developmental expectations. Dr. Hynan opined, however, that Kimberly's defensiveness calls into question the validity of the parenting test results.
Dr. Hynan noted that Christopher is employed full-time and has family in the West Chicago and Chicago areas. If Christopher is granted custody of Kira, his sister, with whom he resides, would care for Kira during working hours. Kira would share a room with Christopher for the time being and later share a bedroom with her cousin Anna. Christopher reported that he has not experienced any significant psychological problems, although he has felt distressed over the break-up of his relationship with Kimberly. Christopher advocates conventional health care for Kira.
Christopher took the MMPI-2 test. Christopher had elevations on supplemental scales that represent beliefs about social responsibility and working actively on controlling anger. That said, Christopher answered questions highly defensively, which, according to Dr. Hynan, calls into question the validity of the personality-test results. Dr. Hynan believes that Christopher's elevations are likely due to his defensiveness.
Christopher also completed the Adult-Adolescent Parenting Inventory. He scored better than average on all of the scales. However, Christopher again answered questions defensively, calling into question the validity of the parenting-test results.
Dr. Hynan based his recommendation that Christopher be granted sole custody primarily on two reasons, one being that he believed that the statutory factor of the interaction of the child with the parents and siblings favored Christopher. Dr. Hynan explained that he was concerned about Che's diagnosis and problems with attention deficit disorder and whether Kimberly was properly treating Che for it. Dr. Hynan also explained that he was concerned with Kimberly's preference for alternative health care.
The second reason upon which Dr. Hynan based his recommendation was that he believed that the statutory factor of the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child favored Christopher. Dr. Hynan acknowledged that each party voiced a willingness and ability to facilitate a good relationship between Kira and the other parent. Additionally, both parties were participating in a routine in which Kira had good access to both parents. However, Kimberly was pursuing a removal petition, which would make it much more difficult for a close and continuing relationship between Christopher and Kira. Dr. Hynan stated that Kimberly's removal petition "had a major impact in that obviously that's what her primary wish was to do, and perhaps, obviously, it therefore, needed to be considered, because it was part of the order to consider it."
Dr. Hynan opined that joint custody would not be in Kira's best interest, due to the parties' lack of communication and significant disagreements over health care. Additionally, Dr. Hynan cited the parties' differing preferences about Kira's schooling. Christopher would like Kira to attend a parochial school and be raised Catholic. Kimberly would like Kira to attend a public school and be exposed to different religious denominations.
Dr. Roger Hatcher, whom the parties stipulated to be qualified as an expert, testified that he was a licensed psychologist ordered to perform a custody evaluation regarding the present case. Dr. Hatcher prepared a report, similar to Dr. Hynan's, recommending that Christopher be given sole custody of Kira. Dr. Hatcher reported that Kimberly presented as an attractive, well-dressed woman with good hygiene. Kimberly was fully cooperative, appeared thoughtful in her responses, and articulated her concerns about the divorce and custody struggle very well. Kimberly gave no indication of psychiatric distress, but did appear somewhat guarded and controlled.
Dr. Hatcher testified that he relied on Dr. Hynan's MMPI-2 test results, which showed a "mild clinical level elevation of the four scale." According to Dr. Hatcher, individuals with Kimberly's profile often struggle with self-centeredness and have difficulty maintaining long-term relationships, due to their tendencies to put their own needs before the needs of others. Kimberly is likely seen by others as somewhat immature, narcissistic, and egocentric. Although Kimberly is likely to make a good first impression and others may see her as outgoing and energetic, she tends to be inwardly resentful and antagonistic when she feels mistreated. However, Kimberly's feelings of anger and aggression are more likely expressed in passive and indirect ways rather than through physical attack or confrontation. Dr. Hatcher believed that although Kimberly's responses on the MMPI-2 test administered by Dr. Hynan showed a mild level of guardedness, her test results were valid.
Dr. Hatcher administered to Kimberly the Millon Clinical Multiaxial Inventory-3 (MCMI-3) test. Kimberly scored well on the Modifying Indices Scale, indicating that her answers were forthright and honest. There were no findings of significant psychiatric disorders, such as depression. There was a significant elevation of the Narcissistic Personality scale. Kimberly's narcissistic tendencies are evident mostly in her difficulties with empathy and the development of close relationships and in her tendency to put her own needs ahead of the needs of others.
Dr. Hatcher reported that Christopher was alert and appropriately neatly-dressed. Christopher was anxious about the divorce and custody proceedings and articulate in expressing his concerns. Christopher gave no indication of psychological impairment. Dr. Hatcher did note that Christopher tended to be a rather carefully organized, compulsive individual, who provided "reams of written documentation" and scrutinized every comment of the examiner.
Dr. Hatcher opined that Christopher's results on the MMPI-2 test administered by Dr. Hynan were also valid, despite Christopher's reported defensiveness. Christopher did not have any significant elevations on any of the clinical scales of the MMPI-2.
Dr. Hatcher administered to Christopher the MCMI-3 test. Christopher's test responses were open and nondefensive. The test gave no indications of personality pathology or major psychiatric disorders. However, there was a significant elevation of the Compulsive Personality Subscale, which suggests that Christopher tends to be tightly controlled, somewhat obsessive, and overly attentive to details. Dr. Hatcher explained that these characteristics may be a great benefit to many people in their chosen professions, as such people would be unlikely to be forgetful in carrying out their assigned duties. However, when taken to extremes, these characteristics can be irritating to others, especially when they cause one to over respond to relatively minor concerns.
Dr. Hatcher noted that Kira was a happy, normal-sized child. She was healthy, affectionate, and social with family and friends. Dr. Hatcher observed Kira during two play sessions, one with Kimberly and one with Christopher. Dr. Hatcher reported that Kimberly interacts with Kira in a quiet, soft-spoken manner. Kira was comfortable and affectionate with Kimberly during the play session. Christopher has a more outgoing parenting style and is verbal and instructive when playing with Kira. Kira clearly enjoyed herself during the play session with Christopher.
Kimberly reported to Dr. Hatcher that she had changed her plans to pursue removal of Kira to North Carolina, because she believes that such a move would make it difficult for Kira to enjoy a relationship with Christopher. However, Kimberly would like to move from Wheaton into a more diverse community such as Homewood, Oak Park, or Evanston. Kimberly would like to start Kira in a Montessori school program and then would like Kira to continue on to public school. Kimberly would also consider a private school. Kimberly has agreed to let Christopher have Kira baptized in the Catholic church, but she would also like to expose Kira to other religions.
Kimberly indicated to Dr. Hatcher that she would look for a pediatrician and a dentist for Kira who have attitudes about health care similar to her own. Kimberly acknowledged that her attitudes regarding health care are nonconventional but maintained that numerous medical professionals around the country share her views. Kimberley provided Dr. Hatcher with several articles and books that support her positions.
Christopher plans to live in his home in West Chicago. He would have the advantage of relatives within the household who would care for Kira while he was working. Christopher intends to raise Kira as a Catholic. At times, he takes Kira to Sunday mass with him. He would enroll Kira in a Catholic school located in Warrenville. In regard to Kira's health care, Christopher would like her to see his family practitioner.
According to Dr. Hatcher, both parties were fit and competent to independently care for Kira. However, like Dr. Hynan, Dr. Hatcher recommended that Christopher be given sole custody of Kira, based on Kimberly's nonconventional views regarding health care and his belief that Christopher would better encourage the non-custodial parent-child relationship. As to Kimberly's views on health care, Dr. Hatcher described them as "unusual, perhaps eccentric." As to the ability to encourage Kira to maintain a close relationship with her non-custodial parent, Dr. Hatcher explained that Christopher was more open and articulate, while Kimberly was more closed in her interactions. Dr. Hatcher also cited Kimberly's attempt to remove Kira from Illinois.
Arlene Gambla, Christopher's mother, testified that she helps care for Kira at times when Christopher has visitation and he is working. Christopher generally works Monday through Friday, in his home office. Christopher usually has Kira dressed and ready before he goes to his office. During the day, Kira often plays in the backyard on the swingset and in the sandbox. Kira naps between 11 a.m. and 1 p.m. Before Kira lies down for her nap, Arlene reads Kira a devotional book she bought for Kira for Christmas. After Kira wakes up from her nap, Christopher has lunch with Kira. At 5 p.m., Christopher gets off work and takes over Kira's care. Christopher feeds Kira dinner, bathes her, and dresses her for bed. Christopher often reads to Kira and says prayers with her before he puts her down for bed.
Arlene does not communicate with Kimberly very often. When Kira is with Arlene, Kira often talks about Kimberly. Arlene believes that it is normal for Kira to talk about her mother and does not discourage her. Arlene believes that it is difficult for Kira when she is exchanged between parents. During the exchange, Kira's eyes get real big and dart back and forth. Arlene has never heard Christopher say anything unpleasant about Kimberly in front of Kira.
Anthony Morello, Christopher's brother-in-law and Kira's godfather, testified that he has observed Christopher interact with Kira. Christopher is very caring and loving toward Kira. Christopher is always focused on Kira's needs. Christopher cooks for Kira, bathes her, and reads to her. Christopher takes Kira to the park and the zoo on weekends. Kira has a great relationship with all of Anthony's children, especially his daughter Anna, with whom Kira now shares a room. Anthony's two sons treat Kira like a sister.
Rajkumar Rambhajan testified that he worked with Christopher at O'Hare Transit System, where Christopher was a supervisor. Christopher supervised several African-American employees, as one-third of the company employees were minorities. Christopher never had any difficulties interacting with his African-American employees.
B. Kimberly's and Her Witnesses' Testimony
Kimberly testified that she lives in Naperville with Che, Kira, and her mother, Marian Woodson. Che is 9 and Kira is 2". Kimberly's residence is a single-family home, with three bedrooms, a den, and a large yard.
Kimberly attended Rutgers University in New Jersey, where she obtained a bachelor of arts degree in biology and African-American studies. Kimberly also attended New York University, where she earned an undergraduate degree in nursing. Kimberly is a licensed nurse in Illinois. In addition to her undergraduate degrees, Kimberly has a master's degree in public health from Emory University, which enables her to do epidemiological studies and community needs assessments and to implement community health promotion programs. Kimberly has also completed two semesters at Emory University toward a master's degree in nursing, which she plans to complete. Finally, Kimberly earned a certificate in child growth education, through a correspondence course. Kimberly put her studies on hold when she became pregnant with Kira. Kimberly and Christopher had decided that Kimberly would be a stay-at- home mom.
Kimberly moved into Christopher's West Chicago residence in June 2002. They had planned to live there temporarily and then purchase a home of their own. Kimberly was uncomfortable living in Christopher's West Chicago residence, because she did not like how his family treated Che. For example, Che was not allowed to play on the backyard swingset, although the other children were permitted to do so. Kimberly also believed that Christopher was overly critical of Che and reprimanded him too frequently.
Kimberly testified that Christopher's criticism of her as a parent started when Kira was born. Christopher stayed home with Kimberly for three or four days following Kira's birth. During that time, they had a conversation about religious beliefs and how they would raise the children with regard to religion. The conversation quickly turned into an argument, and Christopher called Kimberly ungrateful and lazy and accused Kimberly of almost killing Kira with her attempt at a home birth.
In November 2002, Kimberly attended counseling for postpartum depression. Christopher attended one of Kimberly's counseling sessions and read aloud a 14-page document in which he questioned Kimberly's religious practices, child-rearing ability, and communication skills.
Kimberly recalled the incident in which Christopher claims that she hit him with a shirt. As Kimberly remembers, one evening in December 2002, she and Christopher argued because he was again criticizing her parenting skills and religious beliefs. Kimberly stated that "he at some point in the argument said to me have I ever called you the N-word and I must think that he was my white boy bitch." She then swore at Christopher, took a lapel tie from her shirt, and in frustration threw the tie at the bed that Christopher was sitting on, but the tie did not hit him.
Kimberly explained her position as to the medicine for Kira's eyes following her birth. Kimberly testified that through her medical training, she was aware that antibiotics are given to babies to prevent eye infections due to sexually transmitted diseases. To her knowledge, Kimberly did not have a sexually transmitted disease at the time of Kira's birth.
Kimberly also explained her position as to Kira's immunizations. Kimberly agreed to immunize Kira, but wanted to have her immunizations done one by one so that if there was an adverse reaction to one of the shots, she would be able to tell which one caused the reaction.
Kimberly recounted the time that Christopher found her in the closet. According to Kimberly, she was not sleeping. She had just argued with Christopher over how to treat Kira for a cold. Kimberly wanted to place Kira in the shower, while Christopher wanted to bring in a humidifier. Kimberly was very upset that Christopher discounted her idea, and she started crying. When Christopher's mother, sister, and brother-in-law brought a humidifier to the apartment, Kimberly went into the closet because she did not want them to hear her crying.
Kimberly testified that Christopher demanded that she leave the apartment while he spent time with Kira. When she would not agree, he began taking Kira to his West Chicago home to spend time with her. Christopher also frequently made medical appointments for Kira at times that he knew Kimberly would not be available. Christopher would then criticize Kimberly for not being able to attend Kira's doctor visits. Christopher changed Kira's doctor without consulting Kimberly.
Kimberly is concerned that when she comes to pick up Kira at the West Chicago residence, Christopher makes her come to the back door. Kimberly feels that Kira may be getting the message that her mother is not worthy of coming to the front door.
Kimberly testified that she wants Kira to be exposed to different cultures, languages, religions, and ways of thinking. Kimberly wants Kira to be able to travel so that she is exposed to different families and experiences. Kimberly testified that she "wants the world for Kira" and not a "straight and narrow path." Kimberly testified that when she and Kira spend time together, they dance and sing. Kimberly has enrolled Kira in tumbling class. Kimberly wants to enroll Kira in classes to learn ballet and a musical instrument. Kimberly attends an African-American dance class and has taken Kira to that class on occasion. Kira enjoys dancing with the women and children at the African-American dance class.
Kimberly believes that she can teach Kira a lot about African- American culture, including African-American expressions, the African- American way of moving, African-American celebrations, and African- American family relationships. Kimberly ...