*1 WYCOFF, Petitioner-Appellant, and ANN In re MARRIAGE OF JUDITH WYCOFF,Respondent-Appellee. LEE KEVIN 4—93—0984 Fourth District No. 15, 1994. 20, 1994. Opinion August
Argued July filed McCULLOUGH,P.J., concurring. specially STEIGMANN,J., dissenting. Scott, P.C., Springfield, for (argued), Scott &
Gregory A. Scott appellant. Springfield, appellee. (argued), of
Robert B. Goldman opinion of the court: COOK delivered JUSTICE pri- custody, then terminated The trial court terminated sole and awarded custody of the mother mary physical the- joint custody but reverse affirm the termination father. We us argued was before This case custody to the father. of sole award award, all members Because we reverse July 1994. on other work. priority over our given this case panel have of this Anderson) (now Wycoff were Lee and Kevin Wycoff Ann Judith 1984. child, Brittany, born in December was A July 1982. married County Sangamon by entered judgment May On incorporated judgment marriage. terminating the circuit custody, Judith to have with parties’ Friday every other overnight custody, visitation and Kevin Thursday eve- Monday Saturday nights, as well visitation and nings al- followed that schedule generally 9 p.m. from to Visitation Monday Kevin often worked presented Judith played evenings sometimes Thursday nights and on other visitation rock band. Christian married Ted 1990. April Lisa on Judith Kevin married Jostes *2 fllinois, 1993. Before Anderson, Harpe, on June of La resident of for Modification marriage "Counter-petition Kevin filed Judith’s peti- The Marriage,” April 1993. Judgment on of Dissolution change in circum- been a substantial tion recited that there had concerning stances, dispute to were unable resolve that legal Sangamon County, from that Judith’s decision to move interests, that custody longer Brittany’s requested best and was no filed her legal physical custody. Judith awarded sole and her, to modify, asking that sole be awarded petition own to Modify April "Emergency then filed an Petition to on 27. She May on 7. Visitation Schedule” court, days, hearing
After for three the trial on June evidence order, modify emergency petition the visitation denied 607(c) Marriage citing and Dissolution the Illinois (Act), Marriage restrict a provides Act which "the court shall not rights would parent’s it finds that the visitation visitation unless mental, endanger physical, the child’s moral or emotional seriously (750 5/607(c) (West The court then directed that health.” ILCS Brittany physical custody of each week between be alternated through August Judith 18. Kevin and August, days testimony in the trial court entered
After five convincing warranted termination of order that clear and the child joint custody, and that the best interests of the award of The noted permanent with Kevin. order placing warranted Judith, "but has to live with expressed that did not preference.” this Court for her order stated no reasons to (GAL), spent a Brittany’s guardian ad who had mention that litem Brittany over the months amount of time with considerable Brittany hearing, placed had that with recommended per month. pay support child of $300 Judith. Judith was ordered $8,119.09 fees of be divided The court also directed that GAL’s equally parties. between the both with an initial
Stability major child is a consideration (West (750 Act ILCS award of under section 602 5/602 1992)) custody under section 610 with a modification of 1992)). (West suggest Some decisions
Act ILCS 5/610 from a home where "stability” when a child is moved is achieved (See quiet. In re there is turmoil to one where there 1361; Pease 378, 384, Apperson absence of "Stability” continuity, used in sense of is also change. development experts child believe: Some loving relationship with a interruption
"that of a continuous heal nurturing parent invariably scars that do not and completely leaves ability form may child’s future affect the good parent experts Such are relationships and become a himself. likely stay to whom to recommend that the child (if stronger they par- which he attachment can determine has the off, is), may more be better ent that even more other consistent, generally intelligent, more more patient, (S. Solnit, Child 66 appealing.” & A. Divorce & Your Goldstein (1984)(hereinafter Goldstein).) change custody good hopes custodian It is a mistake to another be better. favoring stability strongest expression policy finds its custody deci involving attempts modify previously made
cases sion, creating a By under section 610 of the Act. custodian, legislature in section 610 has
favor of the sought stability continuity in the child’s custodial promote *3 relationships lightly which is not to be overturned. and environmental (In 499, (1979), 414, 421, 396 N.E.2d Custody re Harne 77 Ill. 2d of " finality important more than '[I]nsuring the decree’s is ” Harne, 77 Ill. determining be the custodian.’ which should 501-02, Marriage and 420, Uniform quoting N.E.2d at 396 (1973). Act, 409, Commissioners’ Note Divorce 9A U.L.A. § custody raised some concept joint of has Development of the 610, joint custody and how policies about the of section questions language emphasized be modified or terminated. orders should 610(b) original, Act when the was added to section below (see in 1982 Pub. Act limited, joint custody was enacted version of (1982 2616)): 2609, 17, 1002, 2, Ill. Laws September 1982 eff. § 82— custody judgment unless it modify prior a "The court shall not evidence, facts convincing upon the basis of finds clear and judgment were unknown prior or that arisen since the that have prior judgment, that entry of the at the time of to the court of the child or circumstances change occurred the has custody arrangement that custodian, joint the case or in of either or the child or circumstances change occurred in the has of [(the clause)], change and that custody having both 411 the child. necessary the best interest of to serve modification is parties agree to termination joint custody, the case if joint so terminate the custody arrangement, shall joint best child’s which is custody and make modification clause)]. [(the in its deci- The court shall state interest findings support of its modification sion fact in specific parent opposes the modifica- custody if joint termination of either (West added.) (750 5/610(b) ILCS (Emphasis tion or termination.” provisions final added when the sentence in section was 1,1986. broadened, Pub. Act joint custody January See were effective 4853). 795, 1, Laws January eff. 1986 Ill. 84— custody application joint section 610 to Confusion over the separate questions: distinguish two orders arises from the failure to (1) by a replaced joint custody arrangement whether should be (2) changed arrangement, custody sole and whether primary physical from the custodian. argued joint custody is terminated
It could be that when child, determining over in the best interest court starts having ignores spent party with the period of time the child has has argument physical custody joint under the order. That (1986), Ill. 3d rejected. Marriage App. In In re Kartholl been 233, 1009, one, 228, 1006, a case similar to this 492 N.E.2d legislative of section 610 appellate presumption court held the to the applied favor of the custodian agreed. The joint custody case. courts custodian in Other "physical to the benefit of the custodian[ ] entitled favoring arrangement not be existing custodial which should (In (1991), lightly re Good overturned.” 1001, primary A petition to custody, child, revoke petition custodian (In Marriage Act. governed by section 610 a modification 518, 520; Noble Oros 1247-48.) there is be some cases where There custodian, spends approximately child where the Oros, See equal time but cases are unusual. with each such (alternating at 1249 orders undesirable). *4 give any argues the court refused
Kevin
that
other cases
custody
joint
primary
after a
physical
to the
custodian
was
arrangement
Although
Apperson
our decision in
was terminated.
Act,
there
the issue
under
of the
we did not
discuss
made
section 602
pri
former
here,
in fact awarded the
custody
sole
was
considered
at
215 Ill.
mary physical
(Apperson,
custodian.
in Prince v. Herrera
at
The issue was also not discussed
(1994),
Marriage England
In
The Kartholl court held the trial court custody, when it went on to physical terminate the mother’s mother. The custody joint custody place sole terminate just apply, legislative of section 610 was held presumption custodian, of the change but to the termination primary of the disagree we arrangement point On second joint custody itself. this only joint custody can accepted court. If it is with the Kartholl effectively ability cooperate "to parents where the succeed towards the best interest consistently with each other 5/602.1(c)(1) (West 1992)), joint then child” ILCS (See longer cooperation no exists. readily when such terminated 1249; Oros, 672, 679-80, Drummond change allows view, to as the clause what we have referred our (but arrangement not nec joint custody terminate the trial court to custodian) whenever it physical essarily primary in the best cooperate cannot apparent parents that the has become interest of the child. agreement clause controls argues that terminated joint if apply: in cases where both
clause
basis of the
on the
agreement,
must then award
the court
that one
interest,
giving any weight to the fact
child’s best
without
reject
custodian. We
parent has been the
custody to be termi-
allows
argument.
clause
working, without
recognize it is not
where the
nated
cases
cooper-
parents cannot
convincing
court that the
necessity
where the
being adversely affected. Even
ate,
or that
the child
however,
by agreement,
custody arrangement
is terminated
developed
which has
ignoring the bond
justification for
there is no
custodian,
whether
and the
the child
between
custodian
favoring
case is decided under
best
custody based on the
an initial award
610 or as
of section
Stability and conti-
the Act.
602 of
child under section
interest of the
*5
602, and the
section
the child under
are in
best interest of
nuity
the
of that fact.
recognition
a specific
610
but
presumption of section
mother
relationship between
the
In
the
conceded
Kartholl
court
"strained,”
testimony
the
although
was
there
and father was
concluded
nevertheless
adversely
The court
dispute
affected the child.
the absence
joint
arrangement
in
the
it could not terminate
Act, but
convincing
section 610 of the
of
evidence under
clear and
the
terminated
if
joint custody could be
suggest
went on to
that
in In re
noting
agreement clause.
parties
agreed,
so
the
636,
1,
went
Ill.
Lovejoy
amount
cross-petitions
for sole
further
to hold that
3,
at
agreement
custody.
158 Ill.
(Lovejoy,
to terminate
(clear
warranted
convincing
and
Requiring specific preference reasons for a child’s runs counter to conducting the idea that courts should be careful camera interviews. in a "It seldom child’s interest to be asked to choose be tween his will expression preference to believe that his (Goldstein, judge’s influence the decision.” Children are often enough smart complain parent during not to about either an in camera For part, judges try interview. their most reassure judge deciding child that the will be the issue of and not the judges directly child. Most do not ask the child where he wishes to (See live and what visitation he would desire. In Marriage re Ford 1066, 1071, 546, 550-51; Ill. App. Balzell 22.) The trial court here given weight Brittany’s should have some expressed preference, in the showing absence of was coerced or on improper based reasons. argues properly that the trial court refused to consider the
recommendation of the GAL on In Marriage the basis of Pool (1983) , 1035, 1040, where it was said that the recommendation of a GAL clearly personal "was opinion attorney, inject and it personal opinions is error to closing arguments.” into For this statement Pool relied on a case GAL, which did plaintiffs not involve a a case attorney where in a *7 (Robinson tort expressed opinion closing argument. action in v. Stores, (1982), 1021, 1027, App. Wieboldt Inc. 104 Ill. 3d 433 N.E.2d 1010.) 1005, Other cases have allowed a GAL to make a rec (In (1983), 47, Marriage ommendation. re 114 App. Smith Ill. 3d 49- of 50, 545, 547; 382, 448 N.E.2d Apperson, App. 215 Ill. 3d at 574 N.E.2d 1259; (1985), at see also In re Marriage App. Stuckert 138 Ill. 3d of (trial 788, 791, 395, 486 N.E.2d 396-97 court allowed witnesses’ father).) hearsay preference evidence of child’s to live with To the extent that it a may holds that GAL not make a recommendation as custody, Pool is overruled.
A GAL acts under the control and direction of court as the representative. "eyes child’s A GAL is the and ears” of the court. 416
(Chambers, Lawyer Representing the Role Ambiguous The of (1982).) 510, B.J. 511 Litigation, in Relations 70 Ill. Minor Domestic the child’s proper In our view is for the GAL to make court, given weight to should have some known to the and the court way get prefer GAL’s here. Another child’s recommendation hearsay through ence before the court is the admission of statements Stuckert, 791, at by App. child. Ill. 486 N.E.2d made See 138 551, 556, 396-97; (1989), App. Ill. In re 187 3d Marriage Gustafson of (1993), 578; 575, App. 246 Ill. Marriage 543 N.E.2d In re Deckard (West 5/604(b) 427, 431, 1327, 1331; see also 750 ILCS 3d 615 N.E.2d 1992) (court 750 ILCS may professional personnel); seek advice 1992) 5/605(b) (West may any person who (investigator consult with child). may have information about the The the trial court in this case have been course taken modify petition to visitation on basis set when it denied Judith’s 607(c) restricting of the Act. To avoid Kevin’s visitation section case, up primary changing physical the trial court ended this Judith, dog. every wagging the Not example of the tail from even in visitation time constitutes "restriction or reduction restriction, pro is a termination of visitation is visitation.” A overnight be requirement visitation. A visitation hibition on or parent, home of custodial outside the supervised, occur However, a reduction noncustodial is a restriction. home 31, of summer from 50 hours and reduction weekend visitation (because weeks of the children’s from four weeks to two visitation activities), the serious is not a restriction which had to meet (Gibson (1983), App. 118 3d endangerment v. Barton Ill. standard. (1993), 284-85; 576, 579-80, 282, Marriage In Lee re 1327; 1314, La- 1339, Tour case to changed visitation this accommodate trial could have court 607(c). violating Harpe, La without move to Judith’s for to have been critical of Judith seems trial frequently arise remarrying moving Harpe. to La Similar issues a child petition for leave remove in cases where there is (West It is ILCS Act. State under section 609 5/609 with the necessary custodial not child, permission from court before custody of a to obtain event, "[c]ustodial In moving location Illinois. to another the sake of give up careers expected (Good, location.” remaining geographical in the same 1003; Deckard N.E.2d at see also Judith cannot *8 Harpe, La in the remarry and move to criticized for her decision to frustrate any showing attempt in an absence of that she did so and Brit- relationship visitation or interfere with between Kevin tany. advantages in favor of
One of the to section 610’s to hear is that it eliminates the need for courts custodian testimony parent voluminous which is the best order to determine cases, however, obliged parent. Even in courts are not initial testify will every possible allow each to call witness who gets along that he or she well with the child. A court has considerable (M. Graham, power merely to exclude evidence which is cumulative (5th 403.1 ed. Cleary & Graham’s Handbook of Illinois Evidence § 1990)), including limiting party may of witnesses each the number disputed call. There was no real issue of fact in this case. As anticipated, the trial court that both were fit and concluded custodians, proper Harpe Springfield appropri- and both La were (or places days eight days) testimony ate to raise a child. Five from say only party good witnesses who could parent, that each was a or with, an opinion favoring they offer familiar were judicial waste of resources and parties’ possible assets. It is a lengthy hearing such parties has made relations between the more difficult, and been a anxiety source of as well. similarly
We are concerned about the wisdom of a in this GAL appointment parties case. Kevin moved for aof GAL because "the Custody remarrying moving have Joint Plaintiff is Central Elinois.” In most adequately cases the child’s interests are protected by by court, one or the other and it is difficult presence lawyer improve to see how the process another could 492-93.) enough (Clark, 20.3, Although to be worth the cost. § communicating GAL useful a child’s needs and wishes to court, through lengthy there was no reason for a GAL to sit hearings in this case. summary, properly joint custody the trial court terminated inability
both parties cooperate effectively because of the to- ward the best interest of the child and because of the termination, by for cross-petitions manifested their custody. sole We reverse the award of sole to Kevin because strong the evidence in this case did not overcome the favor of the 610 of custodian established alternative, the Act. In the the award of sole we reverse discretion, under section 602 of the Act as an abuse of because of the overwhelming favoring with the continuation primary physical custodian in the best interests of the child. We entry awarding custody to Judith and
remand for an order sole support. a new order of child part, remanded. part,
Affirmed in reversed McCULLOUGH, concurring: specially JUSTICE *9 First, only one case point respondent’s I out the brief cites order, referring to Other than support the trial court’s Kartholl. brief, authority argument no other petitioner’s cites respondent’s are pages than Kartholl and does not refer to record Likewise, to upon. supplement no relied there is reference Only to after petitioner’s of facts and citations the record. statement concerning questioning by inadequacy the brief this court cited, granted file leave was to parties’ both reference to cases not authority. supplemental mother testimony parties, of the Kevin’s
To summarize the visiting Brittany. Kevin’s sister- only to the benefits of with testified in-law, Mundhenke, good relationship Wendy Brittany’s to testified Brittany family members and that would miss with Kevin’s family get-togethers. Kevin’s mother-in-law spontaneous activities family with Britt- members relationship testified as also happy times any. testimony spelled The in behalf of Kevin out planned Brittany. Judith not family apparent with It is that had continued in the same Harpe, everyone La would have move to mold, custody with custody, primary Judith with Kevin. visitation acknowledges Kevin also testimony on behalf of family with members of the as was as much with other
visitation by be what is Overall, appears Kevin presented him. the evidence witness, Brittany. what is best for individual best Harpe to La was by Kevin that the move There was wife) (his present had no Lisa Brittany. Kevin and harmful living arrangements Harpe. in La Brittany’s concerns about active Brittany. with She was evidence dealt more Judith’s reading vacations, a summer interests, games, reading, Brittany’s Brittany’s school activities was involved with program. She actively Brittany has become parent-teacher conferences. attended primary caretaker Harpe. Judith was the La involved activities and dental decisions. as far medical Act 610 or section 602 of section provisions Whether Brittany are served followed, the best interests are clear only change in cir- Per Judith. placing with having custody, child, or both or either cumstances of Harpe. to La Springfield the move of Judith appointing my colleague as to the wisdom disagree I and is able the child represents The GAL GAL the child. all witnesses to child, feelings, know her cross-examine interview the trial to the a recommendation sincerity their and make determine custody. case, Judith’s considering presented, the evidence this order, of June until the trial court’s from 1987 desire, Brittany’s expressed and the recommendation GAL, against manifest clearly shows the trial court’s decision weight an abuse of discretion. of the evidence and STEIGMANN, dissenting:
JUSTICE Although agree majority opinion, particularly I with much of the decision, While overruling respectfully its court’s Pool I dissent. this designating parent is far from the case for Kevin the custodial overwhelming, sufficient evi- I am satisfied that the record contains support appeal. dence to that decision on majority the trial determination that reverses court’s factual even the trial would be the better custodial hearing conducting five-day
court so ruled after at which dozens Deciding witnesses testified. who should be the custodial after difficult, frequently very a divorce is and never does the trial court *10 greater advantage possess a over this court than when it decides that issue. The trial court can detect nuances and subtleties as it evaluates prospective parents. the witnesses and custodial cannot. Yet We ephemeral may legitimately play important these factors an role as judgment. the trial court exercises its discretion and frequently This case also reveals the morass that arises out misguided awarding custody. practice joint Despite the effort of joint custody, physics those who endorse this fundamental rule of child) applies: (including places still no one can be in two different Thus, "joint custody” really is at the same time. the term However, oxymoron legislative approval. that somehow has obtained legislative recognition reality joint the that true this does not exist, any legislative recognition "being cannot more than pregnant” little bit would render that condition feasible. illogic joint custody, problems
As a created the result case, others, developing that has no concept we see in this custo legislative recognition: primary physical the notion of "the Thus, majority where the "[e]ven dian.” the writes that however, no arrangement by agreement, there is is terminated the developed has between justification ignoring the bond which added.) (266 (Emphasis child and the custodian” statutorily Assembly has not App. 3d at The Illinois General custodian,” and there recognized "primary physical the status of if would be no need for courts to do so the fiction were abandoned. disagree majority’s "[t]he that trial court
I with the statement expressed given weight Brittany’s prefer have to here should some parent], the the absence [for ence any her mother custodial improper showing was coerced based on fair This is not reasons.” statement court; Brittany’s merely prefer trial it not to follow because chose this doing ence —and in so a result with which reached give weight to disagrees mean trial court failed to not —does preference. cases, ag- constantly hears In marital and other this court grieved some appellants the trial court consider failed when, fact, reaching the trial appropriate factor in its decision outweighed that factor but found that other factors court considered aggrieved appellants essentially that the position it. The of these given any weight particular factor trial favoring not court could have because, so, appellant if would court had done them nonsensical, argument is like won. this statements Even here, gave weight majority implying that the trial court that of Brittany’s preference, give succor to such expressed whatsoever to arguments.
Last, only un- position that it supports this ease also necessary judge for the trial to interview the child and unwise divorcing preference, her custodial but parents to determine nothing judicial child abuse. frequently amounts to short of (nor should) other, will divorcing but neither parents are each Thus, divorcing everything court should do the child. trial relationships strengthen nurture strained between possible to during process each of her traumatic child and sense, and Forcing preference makes no a child to state a divorce. stop. engage practice in this harmful judges who case, Further, nine-year-old, of a in this preferences circumstances, necessary are not conveyed under strained majority As its determination. trial court to make custodial they if wish agree utilize GALs I courts should states —and —trial neutral, subject opinion on the informed have the benefit of *11 her his or recommendations custody. The GAL in turn can state her client court, in that the GAL’s interview the trial however, Obviously, form that recommendation. help than when far strained circumstances occur under less interview will judge. preference to the child reveals her respectfully I dissent.