In Re Marriage of Lovejoy

510 N.E.2d 636, 158 Ill. App. 3d 1, 109 Ill. Dec. 768, 1987 Ill. App. LEXIS 2806
CourtAppellate Court of Illinois
DecidedJuly 17, 1987
Docket3-86-0668
StatusPublished
Cited by12 cases

This text of 510 N.E.2d 636 (In Re Marriage of Lovejoy) 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 Lovejoy, 510 N.E.2d 636, 158 Ill. App. 3d 1, 109 Ill. Dec. 768, 1987 Ill. App. LEXIS 2806 (Ill. Ct. App. 1987).

Opinion

JUSTICE HEIPLE

delivered the opinion of the court:

The marriage of the petitioner, Steven Lovejoy (father), and the respondent, Karen Lovejoy (mother), was dissolved on June 4, 1982. At that time, the parties were granted joint custody of their minor child, Angela, who was 21 months old. The joint custody arrangement provided that the father have custody one week a month and IV2 months during the summer. On December 14, 1984, the father filed a petition seeking sole custody of Angela. The mother filed a response and. counterpetition for sole custody. The case proceeded to trial and both parties presented evidence adverse to each other and evidence that they were the proper person to have sole custody of Angela. After hearing all the evidence, the trial court awarded custody to the father. The mother appeals.

The mother’s first argument on appeal is that the trial judge erred in denying her motion for a directed verdict, at the close of the father’s case-in-chief, on the ground that the father failed to meet the burden of proof required to terminate joint custody. The respondent relies on that part of the Illinois Marriage and Dissolution of Marriage Act which provided:

“After the expiration of the 2 year period following a custody judgment specified in subsection (a) of this Section, 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, or in the case of a joint custody arrangement that a change has occurred in the circumstances of .the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which. is in the child’s best interest.” (Ill. Rev. Stat. 1983, ch. 40, par. 610(b) (current version at Ill. Rev. Stat. 1985, ch. 40, par. 610(b)).)

The mother maintains that the father’s evidence failed to establish a change in circumstances justifying the termination of the joint custody arrangement. The argument must fail. In the instant case, the mother filed a counterpetition seeking sole custody of Angela,’ thus agreeing to termination of the previous joint custody arrangement. Accordingly, the father was not required to show that a change in circumstances had occurred.

Even assuming that it was necessary to show a change in circumstances, such was clearly shown. The mother has moved so that the parties are now approximately 250 miles apart, and Angela has reached school age. These changes caused the joint custody arrangement to become a strain and burden on all involved and warranted modification.

The mother next contends that the trial court’s decision to award custody of Angela to the fáther is against the manifest weight of the evidence and an abuse of discretion. The determination of child custody rests largely within the broad discretion of the trial court, and its decision at trial will not be disturbed on appeal unless it is against the manifest weight of the evidence or unless the court has abused its discretion. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710.) The presumption favoring the result reached by the trial court is strong since it is in a better position to evaluate the credibility of the witnesses and the needs of the children. (123 Ill. App. 3d 710.) In making a custody determination, the court has a duty to consider all relevant factors, including:

“(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.” Ill. Rev. Stat. 1985, ch. 40, par. 602(a).

Specifically, the respondent maintains that the court dismissed factor two, the wishes of Angela as to her custodian. During an in camera interview between the judge, the attorneys and Angela, the following conversation took place:

“Q. What do you like best the farm [father’s home] or Glendale Heights [mother’s home]?
A. Glendale Heights.
Q. You do?
A. That is where my puppy is.
Q. Would you rather live with your mother or your father?
A. My mom.
Q. If you could take your dog to the farm would you like to live on the farm?
A. No.”

Although the child’s preference should be given serious consideration in custody modification proceedings (In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781), the preference must be considered in light of the other five factors. The child’s preference is not binding on the court and has to yield to the child’s welfare. (Filipello v. Filipello (1971), 130 Ill. App. 2d 1089.) In the instant case, there were sufficient facts to support a determination that the child’s preference had to yield to her welfare, which could be better provided for by the father.

As to the first factor, the wishes of the child’s parents as to custody, and the fifth factor, the physical and mental health of all involved, it was apparent that both parents wished to have custody of the child and that both parents were physically and mentally fit to care for the child. In regard to the fourth factor, the child’s adjustment to school, community, and home, it was shown that Angela was well-adjusted to her home in both places. Factor six concerned physical violence directed toward the child or someone in the child’s presence. There was testimony concerning a single incident of physical violence on the part of the father toward the mother prior to the dissolution of marriage and in Angela’s presence; however, it must have caused little concern since the parties subsequently agreed to joint custody of the child. We believe the crucial factor in this case was the third factor — the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest.

The mother has moved four times since the dissolution of marriage. She first moved to Macomb and worked at three different jobs while there.

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Bluebook (online)
510 N.E.2d 636, 158 Ill. App. 3d 1, 109 Ill. Dec. 768, 1987 Ill. App. LEXIS 2806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-lovejoy-illappct-1987.