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In Re Marriage of Debra N.

January 31, 2013


Appeal from the Circuit Court of ) Cook County. No. 06D230529 Jeanne Marie Reynolds, Honorable Judge Presiding.

The opinion of the court was delivered by: Justice Pucinski

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.


¶ 1 Petitioner Debra N. appeals an order of the circuit court modifying the joint custody agreement that had been previously reached by the parties and awarding sole custody of their minor child, Aubrey, to respondent Michael S. On appeal, Debra argues that the circuit court's decision to modify the terms of the parties' custody arrangement and award sole custody of their daughter to Michael was against the manifest weight of the evidence. For the reasons set forth herein, we affirm the judgment of the circuit court.


¶ 3 Debra and Michael were married on August 18, 2003. The parties had one child during their union, Aubrey, born on March 8, 2004. On October 20, 2006, Debra filed a petition seeking dissolution of their marriage, citing irreconcilable differences. A judgment dissolving their union was subsequently entered on May 18, 2007. Incorporated into the divorce decree was a joint parenting agreement (JPA) that had been reached by the parties. Pursuant to the terms of the JPA, Debra and Michael agreed to share joint custody of Aubrey. Debra was named Aubrey's residential parent and Michael was awarded regular weekly visitation and alternating weekend visitation. The parties agreed to reside less than 40 miles away from each other to facilitate visitation.

¶ 4 Following the divorce, Aubrey resided in Vernon Hills, Illinois, with Debra and Debra's older son, Jared, a child from a previous relationship. They moved to Wadsworth, Illinois, in 2009. Debra did not remarry. Michael initially resided in the Chicago area. He remarried in October 2009, and moved with his new wife, Stacey, to Arlington Heights, Illinois. Stacey had a son, Jimmy, from a previous relationship, who also lived with them. Michael and Stacy also had a child together, Aidan. Debra's move to Wadsworth occurred shortly after Michael's move to Arlington Heights. Her new residence was 39 miles away from Michael's, narrowly falling within the residency requirements of the parties' JPA.

¶ 5 Following their divorce, the parties appeared frequently before the court, filing various pleadings seeking judicial intervention on issues pertaining to visitation and custody. As the parties' relationship began to deteriorate and they began to appear more frequently before the court, Kathryn Somers was appointed to act as Aubrey's child representative pursuant to section 506(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/506(a)(3) (West 2008)). In that capacity, Somers was responsible for representing Aubrey's interests while attempting to facilitate better interactions between her parents.

¶ 6 On January 10, 2010, Debra filed a petition for removal in the circuit court, seeking permission to remove Aubrey from Illinois and move to Texas. An amended petition was filed on May 4, 2011. In her filings, Debra indicated that she sought to move to Texas for employment reasons. Michael responded, objecting to Debra's request to remove Aubrey to Texas, and argued that Debra's motives for seeking removal were not motivated by employment opportunities since her company had no offices in Texas. Debra subsequently withdrew her petition, and when the parties appeared in court, she orally requested the court to consider her filing to be a petition requesting sole custody. In response, Michael urged the court to uphold the parties' agreement to share joint custody of Aubrey, but requested that he be named her primary residential parent.

¶ 7 The court subsequently presided over a trial regarding issues relating to the custody of Aubrey. It heard testimony from both parents as well as from other witnesses, including a court-appointed psychologist, a grade--school social worker, and Aubrey's teacher.

¶ 8 Doctor Sol Rappaport, a licensed clinical psychologist, was appointed to be the court's expert pursuant to section 604(b) of the Act (750 ILCS 5/604(b) (West 2008)). As the court's expert, Doctor Rappaport interviewed both Debra and Michael, observed their interactions with Aubrey and Aubrey's interactions with her stepbrother and half brothers, and prepared reports documenting his observations and opinions.

¶ 9 At trial, Doctor Rappaport testified that neither parent exhibited symptoms of significant psychological impairment but indicated that their relationship had a "high level of conflict." He noted that the parties have sought frequent court intervention and that Debra had obtained two orders of protection against Michael. Doctor Rappaport opined that a lot of the conflict between the parties existed because Debra and Michael had difficulties communicating effectively with each other and displayed a lack of trust toward each other. According to Doctor Rappaport, each parent has expressed the belief that the other parent has attempted to interfere with his or her relationship with Aubrey.

¶ 10 Notwithstanding the conflict, Doctor Rappaport opined that Aubrey was doing "pretty well" and was attached to both parents. Although she was not yet alienated from either parent, Doctor Rappaport found that Aubrey was "clearly aware" of the high level of conflict between her parents, and he testified that continuing conflict could have a detrimental impact on Aubrey's emotional and psychological well-being.

¶ 11 Doctor Rappaport examined some of the actions taken by the parties and classified some of Debra's behaviors as "problematic." For example, he opined that Debra's petition seeking removal was not entirely made in good faith and that "part of the reasoning behind it was to get away from Michael." Doctor Rappaport agreed it was "partially accurate" that Debra attempted to interfere with Michael's efforts to reschedule visitation times when he had to miss previously scheduled visits due to work-related travel. He agreed that she "should be more flexible," but believed that "both of them play in the dynamic between them regarding this issue." Ultimately, Doctor Rappaport believed that Debra was "a little too enmeshed with Aubrey," but he did not believe that any of Debra's actions were intentionally designed to harm the relationship between Aubrey and her father.

¶ 12 Because of the conflict between the parties, Doctor Rappaport favored breaking the parties' joint custody agreement. He explained that joint custody increased the amount of contact that Debra and Michael had with each other and that sole custody would lessen the opportunity for Aubrey's parents to have conflict with each other. Because Aubrey has always lived with Debra, and there was some evidence that Aubrey was closer to her mother, Doctor Rappaport recommended that Debra be awarded sole custody of Aubrey and that Aubrey continue to reside with her mother. He also recommended that Michael get an increase in parenting time, explaining: "Michael has a lot to offer Aubrey" and that "any possible negative impact that Aubrey may pick up at mom's house about dad can be diminished by having a good relationship with dad."

¶ 13 Doctor Rappaport admitted that his opinion that Debra be awarded sole custody could change if there was evidence that Debra was making false claims against Michael or was engaging in behavior intentionally designed to alienate Aubrey from him. He acknowledged that courts are not required to rule in a manner consistent with his custody recommendations and that there have been prior instances where courts' custody determinations did not accord with his recommendations.

¶ 14 Lydia Scher, a counselor at Aubrey's school, provided testimony about her interactions with Aubrey and Aubrey's parents. Scher has observed and interacted with Aubrey regularly since Aubrey is enrolled in an after-school program that provides counseling and social support services designed to help children socially and academically. Scher testified that Aubrey is "a bright and lively girl," but that she becomes "very guarded" when talking about her parents or their divorce. Aubrey has mentioned that she wants to move to Texas and become a cowgirl.

¶ 15 Scher testified that she first met Debra on January 25, 2011. On that date, Debra approached her and reported that there had been a recent incident where Aubrey's stepbrother, Jimmy, had hit her on the behind. Scher told Debra that if she had concerns about inappropriate contact that Debra should contact the Illinois Department of Child and Family Services (DCFS). Debra responded that contacting DCFS was not an option because she had contacted them multiple times before. Because Scher was a mandatory reporter under DCFS guidelines, she felt compelled to conduct further investigation into Debra's claim. Scher talked to Aubrey and asked her several questions about the incident. Scher ultimately determined that the incident did not seem to place Aubrey in any harm and advised Debra that there was no basis to contact DCFS.

¶ 16 Scher testified that she has had conversations with both Michael and Debra about custody issues. Each parent wanted Scher to be aware of the conflict that existed with respect to their custody dispute. Neither parent, however, has been outwardly disparaging of the other parent in her presence. One specific conflict of which Scher did become aware involved a "Star of the Week" assignment that Aubrey had to complete for school in November 2011. Scher testified that Debra contacted her and reported that Aubrey had worked on a poster at Michael's house, but that she was upset about the finished product. Debra told Scher that Aubrey made changes to her poster when she returned home, but that Aubrey was "still pretty upset" and "worried about it." Based upon Debra's comments, Scher approached Aubrey in school and asked her about the poster. Aubrey started crying and became "guarded" and "didn't really want to talk about it." Scher believed that Aubrey's discomfort stemmed from the fact that she appeared to be "conflicted over disappointing one parent over the other." Aubrey did indicate that she was worried that Michael would come to school and see the changes that were made to the poster.

¶ 17 Sheila Wells, Aubrey's teacher, also provided testimony about her observations of Aubrey and the interactions she has had with both parents. Wells testified that she became aware of the conflict that existed between Debra and Michael when the school hosted a meet-and-greet at the beginning of the school year. Since then, Wells has interacted with each of Aubrey's parents separately. She sends each parent copies of school paperwork and meets with them separately for parent-teacher conferences. Both parents have been actively involved in Aubrey's schooling.

¶ 18 Wells provided more detailed testimony about the "Star of the Week" incident. Wells explained that throughout the school year, each student is named the "Star of the Week," and as a result, the student can bring in pictures and make a poster about his or her likes and dislikes to show to the other students. On the week that Aubrey was named the "star" both Michael and Debra sent pictures to school. Debra, however, contacted Wells and requested that she not use any of the pictures sent by Michael in the "Star of the Week" activities. Wells, however, decorated her classroom door with the pictures sent by both of Aubrey's parents. When Aubrey brought her poster to school, Wells noted that the poster had been altered. There were white-outs and obvious new additions to the poster that depicted Aubrey's likes and interests. Notably the "s" in "brothers" had been whited-out even though Wells was aware that Aubrey had two half brothers and a stepbrother. Although Wells agreed that it was unusual, Wells believed that all of the information that was contained on the poster regarding Aubrey's likes and interests was accurate. When Aubrey came to school that morning, she did not appear to be upset and Wells did not observe any signs that Aubrey had been crying.

¶ 19 Wells classified Aubrey as well adjusted and a "very good" student. When Aubrey started the school year, she was very quiet, but has since warmed up and become more comfortable with Wells. Based on her observations, however, Aubrey is "more guarded" than other students with divorced parents. Wells believed that Debra and Michael need to "show Aubrey that they can get along together" because "she desperately needs to see that they can be in the same room and sit next to one another."

¶ 20 Stacey S., Aubrey's stepmother, married Michael in October 2009. She testified that Aubrey gets along "really well" with her son Jimmy, who is the same age as Aubrey, and explained that they "act like brother and sister. They play video games, they swim in the pool together, they go to the park together. They go to their friends' homes together, they play games together." She acknowledged, however, that Aubrey and Jimmy did have occasions where they fought and that they were disciplined with "time-outs." Stacey testified that Aubrey also gets along well with her new half brother, Aiden. She likes to hold and hug her younger brother. Aubrey shares a room with him when she stays at their house.

¶ 21 Stacey was aware of the incident regarding Jimmy allegedly inappropriately touching Aubrey. Stacey explained that she, Aubrey and Jimmy were walking single-file up the stairs. Aubrey was in front, Jimmy was next, and Stacey was carrying Aiden, who was 18 months old, and was following the kids up the stairs. As the kids were walking, Jimmy "patted Aubrey on the butt a couple times" because he was trying to get Aubrey to move faster. Aubrey did not appear distraught and Stacey reprimanded Jimmy.

ΒΆ 22 Stacey testified that it is evident that Aubrey "loves her father," but indicated that transitions between parents are difficult for Aubrey and she often appears "very sad." Stacey has been present on multiple occasions when Aubrey is transitioned between her parents and has witnessed conflicts and hostility on the part of Debra and her son. Stacey testified that Debra's 16-year-old son, Jared, has made offensive gestures to her during transitions and has spit in the direction of Stacey's car. Debra witnessed her son's actions and laughed. On another occasion, Stacey was 5 to 10 minutes ...

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