In Re Marriage of Andersen

603 N.E.2d 70, 236 Ill. App. 3d 679, 177 Ill. Dec. 289, 1992 Ill. App. LEXIS 1694
CourtAppellate Court of Illinois
DecidedOctober 20, 1992
Docket2-92-0010
StatusPublished
Cited by7 cases

This text of 603 N.E.2d 70 (In Re Marriage of Andersen) 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
In Re Marriage of Andersen, 603 N.E.2d 70, 236 Ill. App. 3d 679, 177 Ill. Dec. 289, 1992 Ill. App. LEXIS 1694 (Ill. Ct. App. 1992).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, Connie Andersen, n/k/a Connie Buchs, appeals from the judgment of the circuit court, in a bench trial, which changed the custody of petitioner’s minor child to her former husband, Richard, the respondent. Petitioner’s sole appellate contention is whether the decision to change custody was against the manifest weight of the evidence.

We will summarize briefly the relevant facts. The parties’ marriage was dissolved in May 1985. The court awarded custody of seven-year-old David to petitioner. In 1990, petitioner remarried, and respondent remarried in 1991. Respondent’s second wife had a nine-year-old son from a previous marriage. In August 1991, respondent filed a petition for a change of custody on the basis that David wished to live with respondent.

Respondent’s home was V-k miles from petitioner’s home. Respondent stated that he had worked outside of Illinois for a while, but he returned to be closer to David. In 1988, respondent “moved to Rockford for the expressed purpose of having [David] live with” him. According to respondent, he and petitioner agreed that when David turned 13, he would live with respondent. Respondent further testified that he sought custody of David because that is what respondent always wanted and because respondent believed it would be better for David to live with respondent during David’s teenage years. Respondent admitted that David was doing well in school and was well-adjusted socially. If custody were changed to respondent, David would continue at the same school. Respondent admitted that he had no complaints about the environment petitioner provided for David.

Petitioner could not recall a conversation with respondent about changing custody of David, but she admitted that when David was 10 or 11, he expressed a desire to live with respondent.

David, then 14, stated that he wanted a chance to live with his father because David was “at the age that [he] should share *** moments” with his father, which he missed. David explained that he “sharefd] a lot of stuff” with his stepfather that he would prefer to share with his father. According to David, he and his parents first discussed his living with respondent when David was seven or eight years old. Petitioner told David he could live with respondent when David was 11 or 12. When asked what he would do if the court denied the petition, David responded that he would continue living with his mother until he was 16, at which point, if petitioner would not agree to a change of custody, he would return to court on his own. David stated that he had a good relationship with both stepparents.

The trial court found that custody would be appropriate with either parent. The court placed great weight on David’s preference because the court found him to be very mature and his reasons were well thought out and sound. The court noted that David expected custody to be changed eventually, based on the agreement between the parties and David. The court concluded that it would be in David’s best interests for custody to be changed to respondent. Petitioner timely appealed.

Petitioner contends that the trial court erred in modifying the custody judgment. A custody determination is a matter of the trial court’s discretion. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498.) The controlling statutory section provides in relevant part:

“(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1991, ch. 40, par. 610(b).)

The statute raises a presumption in favor of the present custodian. (In re Marriage of Valter (1989), 191 Ill. App. 3d 584, 590.) If the trial court finds that the presumption is overcome, its determination is afforded great deference, since the trial court had the opportunity to observe the witnesses’ demeanor and to assess their credibility. (Sussenbach, 108 Ill. 2d at 499.) Thus, the reviewing court will disturb the trial court’s decision only if it was against the manifest weight of the evidence. 108 Ill. 2d at 499.

Petitioner asserts that the trial court’s judgment was against the manifest weight of the evidence because there was no change of circumstance to support the trial court’s decision. Respondent argues that he satisfied this requirement by showing that he and petitioner had both remarried since the dissolution judgment. While these events do constitute a “change of circumstance” in the generic sense, they are insufficient under these facts to support the modification of custody.

First, the circumstances of the noncustodial parent are irrelevant until the court has determined that the circumstances of the custodial parent or of the child have changed. (See In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 1003.) Second, and more importantly, “[cjustody cannot be modified unless there is a material change in the circumstances of the child related to the child’s best interests and unless the evidence establishes either that the parent to whom custody was originally awarded is unfit or that the change in conditions is directly related to the child’s needs.” (In re Marriage of Eldert (1987), 158 Ill. App. 3d 798, 805; see also In re Marriage of Fuesting (1992), 228 Ill. App. 3d 339, 344; Ill. Ann. Stat., ch. 40, par. 610, Historical & Practice Notes, at 93 (Smith-Hurd 1980).) Here, petitioner’s remarriage did not have a negative effect on David’s needs or best interest.

However, the trial court found that the change of circumstances which directly related to David’s needs and best interest were that he had matured and that there was an understanding between the parties, and an expectation by David, that he would live with respondent when David reached adolescence.

Petitioner cites Garner v. Garner (1977), 46 Ill. App. 3d 56, and Stickler v. Stickler (1965), 57 Ill. App. 2d 286, for the proposition that the child’s desire for a change of custody is insufficient to establish a change of circumstance. Those cases do not support that proposition. In Garner, the appellate court found that because the interview of the child was conducted by the trial judge, in camera, without notice to the parties and the substance of the interview was not a part of the record, there was no evidence to support the trial court’s findings. (Garner, 46 Ill. App. 3d at 60.) In Stickler, as part of the settlement agreement, the children were allowed to choose with whom they would live. The children chose to live with their father, but one of the children subsequently changed her mind, and the mother sought custody. In reversing the trial court’s modification of custody, the appellate court stated:

“We have only the court’s finding that [the child] has changed her preference as to custodian. No testimony was taken, and there was no finding that the change was necessary for the child’s welfare.

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Cite This Page — Counsel Stack

Bluebook (online)
603 N.E.2d 70, 236 Ill. App. 3d 679, 177 Ill. Dec. 289, 1992 Ill. App. LEXIS 1694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-andersen-illappct-1992.