In Re Marriage of Deem

766 N.E.2d 661, 328 Ill. App. 3d 453, 262 Ill. Dec. 741, 2002 Ill. App. LEXIS 182
CourtAppellate Court of Illinois
DecidedMarch 15, 2002
Docket4-01-0546
StatusPublished
Cited by23 cases

This text of 766 N.E.2d 661 (In Re Marriage of Deem) 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 Deem, 766 N.E.2d 661, 328 Ill. App. 3d 453, 262 Ill. Dec. 741, 2002 Ill. App. LEXIS 182 (Ill. Ct. App. 2002).

Opinions

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent Jodi L. Deem (hereinafter Jodi) appeals the judgment of the circuit court of Douglas County dissolving her marriage to petitioner, William Russell Deem (hereinafter William). The parties have one child, Stephanie Ann Deem, born March 4, 1997. The issues on appeal are whether the trial court’s awards of child custody, visitation, and child support amounted to an abuse of discretion. We affirm in part, reverse in part, and remand with directions.

William did not file an appellee’s brief. However, the record is simple and the claims raised are such that this court can decide them without the aid of an appellee’s brief. Therefore, we consider the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

We initially consider the issues relating to custody and visitation. A reviewing court will not set aside the trial court’s ordered custodial and visitation arrangements unless they are against the manifest weight of the evidence, manifestly unjust, or resulted from a clear abuse of discretion. Stockton v. Oldenburg, 305 Ill. App. 3d 897, 906, 713 N.E.2d 259, 266 (1999). In this case, the trial court found that joint custody was not appropriate, and Jodi does not challenge that finding. The factors for determining custody in accordance with the best interests of the child are set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602 (West 2000)). Section 607(a) of the Act provides that, unless the court finds that visitation would endanger seriously the child’s physical, mental, moral, or emotional health, a parent not granted custody is entitled to reasonable visitation. 750 ILCS 5/607(a) (West 2000).

Stephanie was three years old at the time the judgment of dissolution was entered on March 1, 2001.' After concluding that joint custody would not' be prudent and would not likely succeed, the trial court awarded custody and control of Stephanie to Jodi. The trial court’s judgment kept in place the temporary order as to custody, which provided joint custody, until the start of kindergarten in the fall of 2001. The trial court did not explain why it kept the order for joint custody for that period of time after its judgment found that joint custody was not appropriate. Although the trial court’s judgment did not award custody and control of the child to Jodi until the commencement of prekindergarten in fall of 2001, any issue or argument as to the question of joint custody is now moot. See Wilson v. Jackson, 312 Ill. App. 3d 1156, 1162-63, 728 N.E.2d 832, 837 (2000) (an issue is moot when intervening events render it impossible for a reviewing court to grant effectual relief to the complaining party).

The March 1, 2001, judgment provided that when the child “commences pre-kindergarten in fall, 2001, the care, custody and control” of the child is granted to Jodi. A holiday visitation schedule was set. The trial court also provided for specific custody and visitation to William, commencing with the summer after the 2001-02 school year. William was to “have custody *** from the day after school is out until one week prior to commencement of school in the fall” subject to each party’s right to “two uninterrupted weeks with the child” and alternate weekend and weeknight visitation. While William had Stephanie for the summer, the judgment of dissolution provided that Jodi pay child support.

Jodi challenges this award of summertime “custody and visitation” to William. The judgment provides a form of alternating or rotating custodial arrangement rather than simply giving William expanded visitation during the summer, even though the judgment of dissolution designated Jodi as the custodial parent.

Generally, the custodial parent has the right to make decisions about the child’s upbringing, education, health care, and religious training. In re Marriage of Duffy, 307 Ill. App. 3d 257, 260, 718 N.E.2d 286, 289 (1999); 750 ILCS 5/608(a) (West 2000). Alternating or rotating custodial arrangements are viewed with disfavor, particularly with young children, as they tend to appease the selfish desires of the parties while denying the child a permanent and stable home environment. Davis v. Davis, 63 Ill. App. 3d 465, 470, 380 N.E.2d 415, 418 (1978). We recognize that in Davis the custodial arrangement was different than that granted in the case at bar because in Davis there were custodial shifts during the school year. We also recognize that in In re Marriage of Dullard, 176 Ill. App. 3d 817, 821-22, 531 N.E.2d 854, 857-58 (1988), the court upheld a custodial arrangement for youthful children wherein one parent had custody of the children for the school year and the other had custody of the children for the summer. However, alternating custodial arrangements have been looked upon with disfavor unless the child is mature enough to cope with the custodial arrangement and visitation is difficult to organize because of the child’s activities. See In re Marriage of Divelbiss, 308 Ill. App. 3d 198, 209-10, 719 N.E.2d 375, 383 (1999).

This court has recognized that the problem with alternate custodial arrangements is the potential development of insecurity and a sense of transience in social relationships in the child occasioned by the change of households and environments, playmates, and healthcare providers. See In re Marriage of Oros, 256 Ill. App. 3d 167, 170, 627 N.E.2d 1246, 1249 (1994) (disapproving a joint custodial arrangement that shifted a preschool child between the parties every three months). “The order must give some permanency to the physical custody of the children and not simply attempt to equalize the time the children spend with each parent.” In re Marriage of Swanson, 275 Ill. App. 3d 519, 524, 656 N.E.2d 215, 219 (1995). In Swanson, this court disapproved a twice-a-month shift of custody as not being in the children’s best interests. Swanson, 275 Ill. App. 3d at 525, 656 N.E.2d at 220. In this case, the trial court specifically found that joint custody was inappropriate. While the Act contemplates a certain flexibility in the trial court’s custody determinations, that flexibility has limits. In re Marriage of Ivey, 261 Ill. App. 3d 200, 207-08, 632 N.E.2d 1121, 1126 (1994).

In the case at bar, the trial court’s judgment provides William liberal visitation, including half of the Christmas vacation period; half of the spring vacation period; alternate weekends from 5 p.m.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vance v. Joyner
2019 IL App (4th) 190136 (Appellate Court of Illinois, 2020)
In re Marriage of Macias
2020 IL App (1st) 191446-U (Appellate Court of Illinois, 2020)
In re Marriage of Andrews
2020 IL App (5th) 190373-U (Appellate Court of Illinois, 2020)
Davis v. Fields
2019 IL App (4th) 190362-U (Appellate Court of Illinois, 2019)
In re Marriage of Abu-Hashim
2014 IL App (1st) 122997 (Appellate Court of Illinois, 2014)
In re Marriage of Shores
2014 IL App (2d) 130151 (Appellate Court of Illinois, 2014)
In re Marriage of Marsh
2013 IL App (2d) 130423 (Appellate Court of Illinois, 2014)
In re Marriage of Sobieski
2013 IL App (2d) 111146 (Appellate Court of Illinois, 2013)
In re Marriage of Berberet
2012 IL App (4th) 110749 (Appellate Court of Illinois, 2012)
In Re Marriage of Anderson and Murphy
938 N.E.2d 207 (Appellate Court of Illinois, 2010)
In re Marriage of Anderson
Appellate Court of Illinois, 2010
In re: Marriage of Sharp
860 N.E.2d 539 (Appellate Court of Illinois, 2006)
Mundy v. Devon
906 A.2d 750 (Supreme Court of Delaware, 2006)
In re Marriage of Wittland
838 N.E.2d 308 (Appellate Court of Illinois, 2005)
Einstein v. Nijim
831 N.E.2d 50 (Appellate Court of Illinois, 2005)
Lo v. Provena Covenant Medical Center
826 N.E.2d 592 (Appellate Court of Illinois, 2005)
In re: Marriage of Ludwinski
Appellate Court of Illinois, 2002
In Re Marriage of Deem
766 N.E.2d 661 (Appellate Court of Illinois, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
766 N.E.2d 661, 328 Ill. App. 3d 453, 262 Ill. Dec. 741, 2002 Ill. App. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-deem-illappct-2002.