In Re Marriage of McKeever

453 N.E.2d 1153, 117 Ill. App. 3d 905, 73 Ill. Dec. 164, 1983 Ill. App. LEXIS 2266
CourtAppellate Court of Illinois
DecidedSeptember 7, 1983
Docket82-735
StatusPublished
Cited by9 cases

This text of 453 N.E.2d 1153 (In Re Marriage of McKeever) 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 McKeever, 453 N.E.2d 1153, 117 Ill. App. 3d 905, 73 Ill. Dec. 164, 1983 Ill. App. LEXIS 2266 (Ill. Ct. App. 1983).

Opinions

JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal from a permanent child custody award. On September 10, 1981, Catherine and Nicholas McKeever were divorced. Temporary custody of their minor children, James, then six, and Katie, age two, was awarded to Catherine McKeever.

During the next nine months, six hearings were held on the issue of permanent custody. Following the hearing on March 19, 1982, the proofs were closed but, on motion of Nicholas McKeever, they were reopened on May 7, 1982, and additional evidence by both parties was presented. At the beginning of the May 7 hearing, the trial judge made the statement that this was a “very, very close case.”

At the conclusion of the May 7 hearing, the matter was taken under advisement, and both parties were asked to file summations and arguments with the trial court. On July 23, 1982, the parties were in court on pending property issues. Written arguments on the property issues were requested of each attorney. Attorney Joe R. Vespa, representing Catherine McKeever, stated that it might be easier to prepare his argument if the court’s decision on the issue of child custody was known. The trial judge then announced substantially as follows:

“In view of all the testimony in this case, especially the testimony at the last hearing, I think it would be in the best interest of the children to award custody to the Father. Child support is set at $50 per week.”

From this July 23, 1982, award of permanent child custody to Nicholas, Catherine McKeever has appealed.

Parenthetically, we note that a dispute exists regarding the exact wording used by the trial judge in announcing the permanent custody award. No court reporter was present at the July 23 hearing, and each party and the trial judge have filed certified bystander’s reports of what transpired then regarding child custody. The bystander’s report filed by Nicholas McKeever is essentially the same as that quoted above, which was submitted by trial judge John D. Sullivan. Catherine McKeever’s report indicates that Judge Sullivan stated: “It is my opinion that because of the evidence introduced at the last hearing, it is in the best interest of the children to be awarded to the father.”

The differences in the language becomes significant in light of the evidence presented at the May 7 hearing. That evidence included testimony of John Dare regarding his physical and emotional involvement with Catherine McKeever; the admission of Nicholas McKeever that he had spent the night on two or three occasions with Dorenda Dare, and the testimony of Father Michael Joseph Ferran who appeared as a character witness for Catherine McKeever.

In this appeal, Catherine McKeever contends that the trial court erred in failing to give adequate consideration both to nonstatutory factors and to those statutory factors found in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act; that the trial court erred in considering the conduct of a present or proposed custodian in violation of section 602(b) of the Act; and that undue emphasis was placed on the May 7, 1982, hearing. Ill. Rev. Stat. 1981, ch. 40, par. 602.

Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act lists factors to be considered by the court in the determination of child custody. Those factors include:

“(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. 1981, ch. 40, par. 602(a).)

Other factors, not included in the statute, are to be considered as well. (In re Custody of Switalla (1980), 87 Ill. App. 3d 168, 408 N.E.2d 1139.) Our review of the record indicates the court heard and considered testimony on nearly all of the statutory factors and some nonstatutory factors as well. Each parent’s desire for custody was considered, as was the interrelationship of the children with each other, their parents, their grandparents, and John Dare, the man with whom Catherine McKeever had a relationship. In addition, the mental and physical health of the parties and the children was examined. Clearly, the relevant statutory factors were considered.

Catherine specified her regular attendance at church with the children as a nonstatutory factor given inadequate consideration. We do not think the record supports this claim. The testimony of Father Ferran, the pastor of Catherine’s local parish, was heard at the May 7 hearing. He spoke highly of Catherine’s devotion to the church and corroborated Catherine’s testimony regarding her taking the McKeever children to church on a regular basis. Catherine contends that this evidence demonstrates that she is a loving mother who cares deeply about her children’s spiritual development. We agree that the evidence indicates that Catherine is concerned about the spiritual well-being of her children. However, there is nothing in the record to show, as Catherine asserts, that the trial judge did not give adequate consideration to this evidence.

Catherine also contends that the trial court erred in refusing to interview six-year-old James regarding his custodial preferences. Such interviews are discretionary. (Ill. Rev. Stat. 1981, ch. 40, par. 604.) Catherine asserts that James is mature for his age; yet, no evidence to support this assertion was presented. In fact, no request was made that James be interviewed until a post-trial motion was filed by Catherine. Under these circumstances and considering the young age of the child, we find no abuse of the trial court’s discretion in electing not to interview James. In re Padiak (1981), 101 Ill. App. 3d 306, 427 N.E.2d 1372; In re DeFranco (1978), 67 Ill. App. 3d 760, 384 N.E.2d 997.

Furthermore, the record indicates that some evidence of James’ custodial preference was before the court. A letter written by James, which expressed his desire and, purportedly, that of his two-year-old sister Katie, that they remain with their mother was admitted into evidence. The letter also expressed love for their father.

At the May 7, 1982, hearing, John Dare testified regarding his involvement with Catherine McKeever. He admitted spending the night with her on several occasions at her home while the children were in the house.

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In Re Marriage of McKeever
453 N.E.2d 1153 (Appellate Court of Illinois, 1983)

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Bluebook (online)
453 N.E.2d 1153, 117 Ill. App. 3d 905, 73 Ill. Dec. 164, 1983 Ill. App. LEXIS 2266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-mckeever-illappct-1983.