2016 IL App (3d) 150105
Opinion filed February 3, 2016 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2016
In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 21st Judicial Circuit, JAMES T. ADAMSON, ) Kankakee County, Illinois. ) Petitioner-Appellee, ) ) Appeal No. 3-15-0105 and ) Circuit No. 06-D-175 ) JENNIFER ADAMSON, ) ) Honorable Respondent-Appellant. ) Michael D. Kramer, ) Judge, Presiding. _____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 The respondent former wife, Jennifer Adamson (mother), appeals from the denial of her
motion to modify visitation and parenting time in postjudgment dissolution of marriage
proceedings.
¶2 FACTS
¶3 A judgment for the dissolution of the marriage of the respondent and the petitioner
former husband, James Adamson (father), was entered on October 30, 2007. The judgment incorporated a joint parenting agreement, which granted both parties joint legal and physical
custody of the minor children, who were approximately seven and two years old at the time. The
judgment and the joint parenting agreement made specific provisions for the parenting time of
each party. Specifically, during the school year, the parenting time was allocated on the basis of
a three-week rotation. In weeks one and two, the father was to have parenting time from Friday
afternoon until Monday morning. The father was also granted parenting time for three hours on
Wednesday afternoons in weeks one and two. In week three, the father was to have the children
from Wednesday afternoon until Thursday morning. The father was also entitled to two 72-hour
"super daddy days" a year, one each school semester, which were vacation increments in
addition to his other parenting time. The mother had her parenting time during all the times not
mentioned, and the children went to school in the district where the mother resided. During the
summer, the parties were to equally divide the summer vacation in one-week increments, and the
winter vacation was to be equally divided. Holidays were also equally divided.
¶4 On July 22, 2013, the mother filed a petition to modify visitation and parenting time. The
petition asked that the parenting time be modified partly because the mother had secured a job
and both the children were now in school full time. The mother sought a specific visitation
schedule, such as alternate weekends, the elimination of the "super daddy days," and the addition
of Easter to the holiday schedule. On October 16, 2013, the father filed a rule to show cause,
alleging that the mother was not complying with the visitation schedule, and a motion to modify
parenting times, seeking increased parenting time and reduced exchanges between the parties.
However, the father withdrew that petition, preferring to retain the established parenting
agreement.
2 ¶5 The circuit court conducted a hearing and heard testimony from both parties and the older
child. The older child, who was now 14 years old, testified that he was closer to his mother. He
testified that his father yelled a lot and had done mean things, like intentionally bringing uniform
jerseys and shoes late to a game and preferring the older child to have sleepovers at the father's
house rather than a friend's house. The child testified that his father's girlfriend was mean, but
she had not been at his father's house during visitation hours for a few months. Both the child
and the mother testified that they would prefer a visitation schedule where the children were with
the father every other weekend and overnight on Wednesdays, with no more "super daddy days."
¶6 The father testified that he scheduled his work hours around his parenting schedule. He
also testified that he was taking a break from his girlfriend after she said something to the older
child. The father permitted the older child to stay overnight at friends' houses on several
occasions, and he allowed friends to stay over at his home. The last time he exercised his “super
daddy days” it was to extend President’s Day weekend, during which time the father and the
children traveled to Colorado.
¶7 The circuit court denied the petition. The court found that it could modify a parent’s time
with a minor child pursuant to section 607(c) of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/607(c) (West 2012)) when it served the best interest of the
minor, and no substantial change in circumstances since the last modification needed to be
proven. However, the circuit court concluded that the mother failed to prove by a preponderance
of the evidence that a modification of the parenting time schedule was in the best interest of the
children. With respect to the rule to show cause, the circuit court did not find the mother in
contempt but did order make-up times for the father’s missed parenting times on various
Wednesdays. The mother appealed the order denying her petition to modify.
3 ¶8 ANALYSIS
¶9 The mother argues that the circuit court erred in denying her petition to modify visitation
and parenting time, contending that the circuit court’s decision was against the manifest weight
of the evidence because the evidence at the hearing suggested that some modification to the
parenting schedule was necessary and the circuit court did not give any weight to the wishes of
the older child. The father argues that the mother failed to identify a parenting-time modification
that would be in the better interest of the children. Additionally, the father contends that the
circuit court’s failure to specifically discuss each best interest factor did not indicate that the
factors were not considered, and the older child’s wishes were not in his own best interest.
¶ 10 Section 607(c) of the Act provides that a “court may modify an order granting or denying
visitation rights of a parent whenever modification would serve the best interests of the child.”
750 ILCS 5/607(c) (West 2012). As the circuit court correctly noted, the modification provision
does not require proof of a substantial change of circumstance, but only requires the court to
consider whether a modification of a visitation order would be in the minor's best interest. In
determining the best interests of a child, the circuit court considers the factors listed in section
602(a) of the Act. 750 ILCS 5/602(a) (West 2012); DeBilio v. Rodgers, 337 Ill. App. 3d 614,
617 (2002). On appeal, we will not reverse a circuit court's decision regarding the modification
of visitation unless it was against the manifest weight of the evidence or an abuse of discretion.
Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 954 (1993).
¶ 11 The mother argues that the most relevant factors in this case were the wishes of the
mother, the wishes of the older child, and the interaction and interrelationship of the older child
with his parents.
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2016 IL App (3d) 150105
Opinion filed February 3, 2016 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2016
In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 21st Judicial Circuit, JAMES T. ADAMSON, ) Kankakee County, Illinois. ) Petitioner-Appellee, ) ) Appeal No. 3-15-0105 and ) Circuit No. 06-D-175 ) JENNIFER ADAMSON, ) ) Honorable Respondent-Appellant. ) Michael D. Kramer, ) Judge, Presiding. _____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 The respondent former wife, Jennifer Adamson (mother), appeals from the denial of her
motion to modify visitation and parenting time in postjudgment dissolution of marriage
proceedings.
¶2 FACTS
¶3 A judgment for the dissolution of the marriage of the respondent and the petitioner
former husband, James Adamson (father), was entered on October 30, 2007. The judgment incorporated a joint parenting agreement, which granted both parties joint legal and physical
custody of the minor children, who were approximately seven and two years old at the time. The
judgment and the joint parenting agreement made specific provisions for the parenting time of
each party. Specifically, during the school year, the parenting time was allocated on the basis of
a three-week rotation. In weeks one and two, the father was to have parenting time from Friday
afternoon until Monday morning. The father was also granted parenting time for three hours on
Wednesday afternoons in weeks one and two. In week three, the father was to have the children
from Wednesday afternoon until Thursday morning. The father was also entitled to two 72-hour
"super daddy days" a year, one each school semester, which were vacation increments in
addition to his other parenting time. The mother had her parenting time during all the times not
mentioned, and the children went to school in the district where the mother resided. During the
summer, the parties were to equally divide the summer vacation in one-week increments, and the
winter vacation was to be equally divided. Holidays were also equally divided.
¶4 On July 22, 2013, the mother filed a petition to modify visitation and parenting time. The
petition asked that the parenting time be modified partly because the mother had secured a job
and both the children were now in school full time. The mother sought a specific visitation
schedule, such as alternate weekends, the elimination of the "super daddy days," and the addition
of Easter to the holiday schedule. On October 16, 2013, the father filed a rule to show cause,
alleging that the mother was not complying with the visitation schedule, and a motion to modify
parenting times, seeking increased parenting time and reduced exchanges between the parties.
However, the father withdrew that petition, preferring to retain the established parenting
agreement.
2 ¶5 The circuit court conducted a hearing and heard testimony from both parties and the older
child. The older child, who was now 14 years old, testified that he was closer to his mother. He
testified that his father yelled a lot and had done mean things, like intentionally bringing uniform
jerseys and shoes late to a game and preferring the older child to have sleepovers at the father's
house rather than a friend's house. The child testified that his father's girlfriend was mean, but
she had not been at his father's house during visitation hours for a few months. Both the child
and the mother testified that they would prefer a visitation schedule where the children were with
the father every other weekend and overnight on Wednesdays, with no more "super daddy days."
¶6 The father testified that he scheduled his work hours around his parenting schedule. He
also testified that he was taking a break from his girlfriend after she said something to the older
child. The father permitted the older child to stay overnight at friends' houses on several
occasions, and he allowed friends to stay over at his home. The last time he exercised his “super
daddy days” it was to extend President’s Day weekend, during which time the father and the
children traveled to Colorado.
¶7 The circuit court denied the petition. The court found that it could modify a parent’s time
with a minor child pursuant to section 607(c) of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/607(c) (West 2012)) when it served the best interest of the
minor, and no substantial change in circumstances since the last modification needed to be
proven. However, the circuit court concluded that the mother failed to prove by a preponderance
of the evidence that a modification of the parenting time schedule was in the best interest of the
children. With respect to the rule to show cause, the circuit court did not find the mother in
contempt but did order make-up times for the father’s missed parenting times on various
Wednesdays. The mother appealed the order denying her petition to modify.
3 ¶8 ANALYSIS
¶9 The mother argues that the circuit court erred in denying her petition to modify visitation
and parenting time, contending that the circuit court’s decision was against the manifest weight
of the evidence because the evidence at the hearing suggested that some modification to the
parenting schedule was necessary and the circuit court did not give any weight to the wishes of
the older child. The father argues that the mother failed to identify a parenting-time modification
that would be in the better interest of the children. Additionally, the father contends that the
circuit court’s failure to specifically discuss each best interest factor did not indicate that the
factors were not considered, and the older child’s wishes were not in his own best interest.
¶ 10 Section 607(c) of the Act provides that a “court may modify an order granting or denying
visitation rights of a parent whenever modification would serve the best interests of the child.”
750 ILCS 5/607(c) (West 2012). As the circuit court correctly noted, the modification provision
does not require proof of a substantial change of circumstance, but only requires the court to
consider whether a modification of a visitation order would be in the minor's best interest. In
determining the best interests of a child, the circuit court considers the factors listed in section
602(a) of the Act. 750 ILCS 5/602(a) (West 2012); DeBilio v. Rodgers, 337 Ill. App. 3d 614,
617 (2002). On appeal, we will not reverse a circuit court's decision regarding the modification
of visitation unless it was against the manifest weight of the evidence or an abuse of discretion.
Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 954 (1993).
¶ 11 The mother argues that the most relevant factors in this case were the wishes of the
mother, the wishes of the older child, and the interaction and interrelationship of the older child
with his parents. See 750 ILCS 5/602(a)(1), (2), (3) (West 2012). The mother contends that the
circuit court failed to address any of the factors in rendering its decision. However, it is clear
4 that the circuit court considered the evidence presented in favor of modification. The circuit
court acknowledged the mother’s desire for more quality time with the children, in addition to
the father’s desire to maintain his parenting time. Although the circuit court did not specifically
mention the older child’s testimony regarding the father, it was part of the evidence before the
court.
¶ 12 Clearly, a mature child's preference as to custody should be given considerable weight
when it is based on sound reasoning. Shoff v. Shoff, 179 Ill. App. 3d 178, 185 (1989) (citing In
re Marriage of Leff, 148 Ill. App. 3d 792, 810 (1986)). However, a court is not precluded from
finding that the child's preference is not in the child's best interest. Id. In this case, the older
child testified that a year earlier, he wanted more time with his father, but he had recently
changed his mind because of the mean and bad things his father had done. However, when
asked to describe those things to the court, the older child only described misunderstandings and
normal teenage/parent behavior. For example, the child testified that his father would never give
him his sports uniform in time for a game and would forget soccer shoes on purpose. When the
father was asked to clarify this, he testified that he never purposely forgot to bring sports
equipment. The father did recollect a time when he laid the child’s uniform out on the front
porch for the mother to pick up and she failed to pick it up. The older child also testified that his
father never let him have sleepovers at a friend’s house. However, when asked to clarify, the
child testified that now that his father had moved, he was allowed to stay over at friends’ houses,
but his father preferred, and allowed, his friends to stay over at the father’s house. The older
child’s testimony regarding the visitation schedule that he preferred was almost identical to that
requested by the mother. When asked why he no longer wanted his father to have “super daddy
days,” the older child testified that it was unfair to his mother.
5 ¶ 13 Based upon the evidence before the circuit court, we find that the circuit court’s
conclusion that a modification of the parenting time agreement was not in the children’s best
interest was not against the manifest weight of the evidence nor an abuse of discretion.
¶ 14 CONCLUSION
¶ 15 The judgment of the circuit court of Kankakee County is affirmed.
¶ 16 Affirmed.