Dokos v. Dokos

232 N.E.2d 508, 88 Ill. App. 2d 330, 1967 Ill. App. LEXIS 1344
CourtAppellate Court of Illinois
DecidedSeptember 20, 1967
DocketGen. 50,911
StatusPublished
Cited by11 cases

This text of 232 N.E.2d 508 (Dokos v. Dokos) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dokos v. Dokos, 232 N.E.2d 508, 88 Ill. App. 2d 330, 1967 Ill. App. LEXIS 1344 (Ill. Ct. App. 1967).

Opinion

MR. JUSTICE SMITH

delivered the opinion of the court.

The parties were divorced in December, 1961, and custody of the minor children, Deborah now age 16, John now age 12, and Daniel now age 10, was awarded to the mother. In 1965, the mother filed her petition seeking an increase in child support payments and seeking permission from the court to continue to have her three children domiciled with her in Germany where her present husband is now employed. The defendant answered and filed a cross-petition for a change of custody or possession of the children to him on the ground that he wanted his children to be raised in the United States rather than in any foreign country. The trial court dismissed the petition for an increase in child support for want of equity and allowed the father’s cross-petition for custody of the children based upon a finding that “the court having deemed it to be in the best interest and welfare of the children to have them reared and educated in the United States . . .” From this decree, the mother appeals.

Patriotism is love of one’s country. Love of one’s country necessarily implies a profound faith in its government and in its ideologies and a proud faith in the superior excellence of its institutions and its opportunities. We would not cryptically criticize the proud patriotism reflected in the father’s desire to have his children educated in the United States nor the decree of the trial court basing a change in custody on that ground alone. Commendable as it is, it does not ipso facto supply the answer to what is for the best interest of these minor children. Praiseworthy as it is, it is not an all inclusive warranty that the children reared and educated under its beneficent influences will automatically achieve the fruition that ought to be theirs. Our own juvenile delinquency problems among all classes and all economic levels are mute, but stark evidence of this fact. It would seem, therefore, that a determination of what is for the best interest of minor children requires more. In our judgment, we must look at the home, at its influences, at its images, and at the guidance that it furnishes past, present and prospective.

The father met the second Mrs. Dokos in November preceding the divorce in December, 1961. In April, 1962, she obtained a Mexican divorce and she and the father were married on April 21, 1962. These minor children were not advised of this marriage. Deborah has never met her stepmother and the boys met her only a few days before the modifying petitions were heard in September, 1965. The father visited the children in Europe in February, 1964. The second Mrs. Dokos was not with him. He communicated with the children regularly by mail and they preceded their mother to the United States in July, 1965. The father saw them frequently subsequent to that date. He took them to the World’s Fair and Washington, D. C., and had them with him on this trip for about ten days. The second Mrs. Dokos was not with them. Indeed the Chancellor himself commented that the new Mrs. Dokos was “an uncertain entity” and only time would tell whether she would properly care for the children. She had no children either by her first or present marriage.

The plaintiff testified that she discussed her upcoming marriage to her present husband and the future of the children with the defendant in February, 1963. She advised him that her prospective husband was being sent to Germany by his employer and she guessed that it would be for from 18 months to 2 years; that she would not marry him if she couldn’t take the children with her; that the defendant father said he had no intention of causing her any trouble and wished her happiness; that she did marry her present husband on April 30, 1963, and in July the children went to her in Germany; that they attended school at the Air Force Dependent School where the tuition was $465 per child; that she contemplated sending the two boys to a preparatory school in London because she felt they would receive a better education there, and wrote to the defendant about it; that she did not hear from him and did not know that he objected to it until her petition for an increase in child support was filed; that her marriage abated the $425 per month alimony which she was receiving, and that she did not intend to reside permanently outside the United States.

After conclusion of the evidence, the mother’s attorney offered a proposition that the children stay in West Germany and continue their schooling at the Air Force Dependent School there, if this was the desire of the father and the court approved; that the court might determine whether the children should go to London, England, or continue their education in Germany; that the decree should provide that the father be granted the right of visitation during the summer, and that provisions be made for returning the children to this country during the summer months. In response to this, defendant’s attorney stated, “I want to make the point very clear that Mr. Dokos would not under any circumstances consider agreeing to permit the children to live any longer in Germany, whether they are going to school in Germany or going to school in England.”

Our statute provides that a court may grant leave for the removal of a child from Illinois whenever such removal “is in the best interests of such child or children” and that the custodian of such children may be required to give reasonable security for the return of the children when the court directs. Ill Rev Stats 1965, c 40, § 14. The mother sought the consent of the father, but not of the court to take the children with her to Germany. While we would have preferred that she had complied with the original decree of the court in this respect, her conduct here does not appear to have been contemptuous or in willful disregard of that order. Indeed she sought in her petition to have her initial action approved and her continued action authorized. The father initially consented and acquiesced for a period of 2*4 years without initiating any remedial action. In any event, a change of custody is inappropriate punishment for a contempt of court, if there was one. Szczawinski v. Szczawinski, 37 Ill App2d 350, 185 NE2d 375. It is but an oft repeated truism to say that children of tender years are normally awarded to a fit mother where they may have her constant care. Miner v. Miner, 11 Ill 43, 50, cited in Nye v. Nye, 411 Ill 408, 105 NE2d 300, 303. Nothing is more injurious to the welfare of the child than to have it shuttled between contesting parents. Bulandr v. Bulandr, 23 Ill App2d 299, 162 NE2d 585. It is, of course, true that it is not necessary for the validity of an order changing custody to another parent to establish by new facts the present unfitness of the parent to whom custody has been previously entrusted “if other circumstances are clearly shown which require a modification for the welfare of the children.” Kline v. Kline, 57 Ill App2d 244, 247, 205 NE2d 775, 777. There is nothing in this record that remotely faults this mother during the years the children have been in her custody other than the mother’s domicile presently in Germany. The suggestion that her desire to place the boys in an English preparatory school for awhile is evidence of her desire to get them from under foot and demonstrates her lack of solicitude for their welfare is factless fiction. She testified that she felt it would furnish them a better education than their present school. She solicited their father’s advice and consent — for five months he was silent.

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Bluebook (online)
232 N.E.2d 508, 88 Ill. App. 2d 330, 1967 Ill. App. LEXIS 1344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dokos-v-dokos-illappct-1967.