NOTICE 2022 IL App (4th) 220057-U FILED This Order was filed under June 2, 2022 Supreme Court Rule 23 and is NO. 4-22-0057 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
MATTHEW SMITH, ) Appeal from the Petitioner-Appellant, ) Circuit Court of v. ) Macoupin County LACEY SMALL, ) No. 21F34 Respondent-Appellee. ) ) Honorable ) Kenneth R. Deihl, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.
ORDER ¶1 Held: The trial court’s judgment allocating the majority of the parenting time to respondent was not against the manifest weight of the evidence.
¶2 Petitioner, Matthew Smith, appeals from the trial court’s order awarding
respondent, Lacey Small, a majority of the parenting time with respect to their minor son, T.D.S.
(born July 23, 2012). On appeal, petitioner argues the court’s determination was against the
manifest weight of the evidence. We affirm.
¶3 I. BACKGROUND
¶4 On January 19, 2021, petitioner filed a petition for allocation of parenting time.
Petitioner requested that the trial court award him the majority of the parenting time with respect
to T.D.S. ¶5 A. The Best-Interest Hearing
¶6 On October 1, 2021, and November 29, 2021, the trial court conducted a hearing
on the petition. We discuss the evidence relevant to the issue raised on appeal.
¶7 1. Petitioner
¶8 Petitioner testified he was in a relationship with respondent for approximately
eight years. He lived with respondent and T.D.S. in Carlinville. The parties separated in 2018,
when T.D.S. was five years old. T.D.S. has Down’s syndrome, is nonverbal, and wears diapers.
After the separation, petitioner moved into a two-bedroom apartment in Collinsville. According
to petitioner, T.D.S. lived with petitioner during the summer and on the weekends during the
school year. T.D.S. lived with respondent in Carlinville when T.D.S. was in school until August
2020.
¶9 Petitioner testified he works at America’s Auto Auction in Centreville. He stated
he begins work between 7 and 8 a.m. and leaves anywhere between 3 and 5 p.m. Petitioner
testified that if he is still working when the school day ends, his mother or daughter watches
T.D.S. until he returns from work. Petitioner’s mother was 73 years old at the time of the hearing
and his daughter was 18 years old. Petitioner testified T.D.S. also “sees my sister, her kids, their
kids, brother-in-law, pretty much any of my immediate family that lives in the area around at
least a couple times a month, if not more.”
¶ 10 Around March 2020, respondent and T.D.S. “needed someplace to stay” so they
moved in with petitioner. Petitioner testified that respondent moved out of her then-boyfriend’s,
Donald Burcham’s, home because it was a “bad place.” After about a week, respondent and
T.D.S. moved back in with Burcham. According to petitioner, in April 2020, Burcham “kicked
her out again and [T.D.S.] came to stay with me.”
-2- ¶ 11 In August 2020, the parties agreed that T.D.S. should live with petitioner during
the upcoming school year. Respondent helped petitioner enroll T.D.S. in the Collinsville school
district. The parties further agreed they would discuss the possibility of T.D.S. returning to live
with respondent when her living situation stabilized. Respondent typically saw T.D.S. once every
other weekend during this time.
¶ 12 Sometime in late 2020, respondent moved back in with Burcham. One weekend in
January 2021, prior to petitioner dropping T.D.S. off with respondent for the weekend, petitioner
told respondent she needed to start providing her own supplies for T.D.S. Petitioner testified
“that escalated into an argument that ended with her going to the police saying I took him.” The
parties met at the Collinsville police station with the understanding respondent would return
T.D.S. the following Monday. However, respondent did not return him on that Monday. As a
result, petitioner started custody proceedings, and the Circuit Court of Madison County entered a
temporary order requiring respondent to return T.D.S. to petitioner. As part of the order,
respondent received parenting time on the weekends.
¶ 13 Petitioner testified T.D.S. attended the Carlinville school district “from Pre K and
through the end of the 2020 school year.” Due to his disabilities, T.D.S. has always had an
individualized education plan (IEP). Petitioner attended the IEP meetings when he lived in
Carlinville. Petitioner testified that he also attends T.D.S.’s medical appointments. Petitioner
testified respondent was unable to attend one of T.D.S.’s eye doctor appointments because she
had to take Burcham to the hospital. On cross-examination, he acknowledged she had a
“legitimate reason” for missing the appointment.
¶ 14 Petitioner agreed that respondent had raised concerns about T.D.S.’s weight gain.
Petitioner testified he “immediately called his doctor and scheduled a blood workup to make sure
-3- everything was okay.” Petitioner claimed T.D.S. grew a “foot and a half” and “seem[ed] to be
losing weight” ever since it was brought to his attention.
¶ 15 Petitioner testified T.D.S. receives $800 per month in social security payments
due to his disability. Respondent had received the payments until about a month prior to the
hearing. Petitioner testified he did not believe respondent was “financially, physically, or
mentally capable of taking care of [T.D.S.] on a day-to-day basis.”
¶ 16 2. Emma Reichert
¶ 17 Emma Reichert testified she is employed as a behavioral specialist with a “special
education cooperative that supports local rural school districts.” Prior to that, she “worked as the
early childhood special education teacher in [the] Carlinville School District.” Reichert testified
she was previously T.D.S.’s teacher and subsequently consulted on his case in her role as a
behavioral specialist.
¶ 18 Reichert testified T.D.S.’s first IEP took place shortly before his third birthday.
The service plan provided for “speech and language services, occupational therapy, ***
developmental, cognitive, social, emotional skills.” Reichert testified T.D.S. was happy in the
Carlinville school district and had friends and “great relationships with staff.” Reichert stated she
had reviewed the “move-in IEP” created by the Collinsville school district. She testified the
services provided by the two school districts were comparable.
¶ 19 Reichert stated that, in her opinion, respondent was more involved with the
minor’s education because she spoke with respondent regularly on the phone and saw her in-
person at meetings. Reichert also testified that respondent “is a very good mother. She is a hard
worker. She always puts [T.D.S.’s] needs above her own.” Reichert further testified she did not
believe T.D.S. would have any difficulty transferring back to Carlinville from Collinsville
-4- because “he would be returning to the same teachers, the same assistants, the same therapists
who have known him for eight years.”
¶ 20 3. Donald Burcham
¶ 21 Donald Burcham testified he had been dating and living with respondent for
approximately two years. T.D.S. lived with them during respondent’s parenting time. Burcham
stated he is much older than respondent. Burcham testified that, in March 2020, he and
respondent agreed that given their age difference, she “needed a chance to reconcile” with
petitioner so T.D.S. could have a better relationship with his father. Burcham testified respondent
and T.D.S. only lived with petitioner for about a week before moving back in with him.
Respondent and T.D.S. moved out again in August 2020 because Burcham’s family still “wasn’t
accepting her because of the age difference.” Burcham testified he never kicked respondent out
of his house, stating instead that the two of them reached a mutual agreement. They remained in
constant communication until respondent moved back in with him around November 2020.
Burcham and respondent became engaged in February 2021.
¶ 22 Burcham testified T.D.S. is his “pride and joy” and described him as “my son.”
According to Burcham, T.D.S. “needs waited on 24/7 practically” and, in his opinion, petitioner
is unable to meet T.D.S.’s needs because he frequently leaves the child with a babysitter who is
not willing to provide the intensive care necessary. Burcham testified that when they meet
petitioner for exchanges, T.D.S. “runs to his mother for hugs every time when his dad brings him
to us. *** But he doesn’t run up to his dad and hug him or anything like he does his mother.”
Burcham further testified that T.D.S. “hasn’t been him[s]elf” since the temporary order was
entered in January 2021, and he appears “run down” when petitioner drops him off. Burcham
-5- further testified T.D.S. frequently has diaper rashes after he has spent several days with
petitioner.
¶ 23 4. Respondent
¶ 24 Respondent testified that she lives in Carlinville with Burcham and T.D.S., when
T.D.S. is with them. She has lived there since 2019, except for a brief period in March 2020
when she lived with petitioner and “in August when we agreed for me to leave due to conflict in
the family.”
¶ 25 Respondent testified she was previously in a relationship with petitioner from
2010 to 2018. She stated their relationship was initially good following T.D.S.’s birth but
“started going downhill” after she had several surgeries. Respondent claimed petitioner was
verbally abusive to her and did not want to care for T.D.S. even when she was recovering from
her surgeries. According to respondent, when the parties separated in 2018, petitioner initially
denied being T.D.S.’s father. However, after a few weeks he agreed to visit with the child. The
parties agreed respondent would have T.D.S. during the week and petitioner would have him on
the weekends.
¶ 26 Respondent testified T.D.S. was diagnosed with Down’s syndrome when he was
approximately three months old. She stated T.D.S. requires 24-hour care because “[t]here is
nothing he can do without someone being there at least supervising, if not helping him.” For
example, T.D.S. frequently chokes on his food, needs his diaper changed often, and cannot bathe
himself or wash his own hands.
¶ 27 Respondent testified that in March 2020, petitioner called her to ask if she and
T.D.S. would move in with him “to try to make our family whole again.” Respondent discussed
this with Burcham, and they both agreed she should do it so T.D.S. could have a better
-6- relationship with petitioner. However, respondent and T.D.S. moved out of petitioner’s house
within several days and moved back in with Burcham. Respondent described petitioner’s
apartment as “a dumpster.”
¶ 28 Respondent again moved out of Burcham’s house in August 2020 due to concerns
about the age difference between the two—respondent is approximately the same age as
Burcham’s children. Respondent and petitioner agreed T.D.S. should live with petitioner and
attend school in Collinsville until respondent “got back on [her] feet” because she did not have a
house of her own at the time. In November, respondent moved back in with Burcham because
they “really do love each other” and did not want to let “the conflict in the family” keep them
from being together. However, respondent did not want T.D.S. to move back in with them until
she resolved the conflict with Burcham’s family. Respondent was able to resolve the conflict in
December and asked petitioner to let T.D.S. live with her during the school year. According to
respondent, petitioner refused to return T.D.S. to her and told her she “better have $10,000 if I
wanted to see my child again.” Respondent had to call the Collinsville police to have petitioner
meet her at the police station to exchange T.D.S. Respondent re-enrolled T.D.S. in the Carlinville
school district, and he remained living with her until the Circuit Court of Madison County
entered a temporary order awarding petitioner the majority of the parenting time.
¶ 29 Respondent testified she has had three jobs since T.D.S.’s birth and has not had a
paying job since approximately March 2020. Respondent stated she did not want to get a job so
that she would be available to care for T.D.S. whenever possible. Respondent acknowledged that
she depended on Burcham to pay her bills and for transportation. Nonetheless, she maintained
her situation was stable because she was engaged to Burcham and he intended to give her the
house when he dies.
-7- ¶ 30 Respondent testified that when the parties meet for exchanges, T.D.S. “always
runs right up to me and hugs me real tight.” Respondent further stated that “[w]hen it’s time ***
to get him ready to come back [to petitioner], he fights me getting him dressed, just pushing
everything away.” Once respondent “finally” is able to get T.D.S. ready, “he seems happy to see
his dad.” Respondent testified T.D.S. usually is not dressed appropriately for the weather when
petitioner drops him off at exchanges. Additionally, respondent claimed T.D.S. has diaper rashes
whenever petitioner returns him to her and he has gained nearly 30 pounds since he began living
with petitioner following the Madison County court order. According to respondent, petitioner
told T.D.S.’s doctor in January 2021 “that he could only get [T.D.S.] to eat popcorn, pork rinds,
and milk, and that was it.”
¶ 31 5. Ian Murphy
¶ 32 Ian Murphy was appointed to serve as the guardian ad litem (GAL) and prepared
a report containing his recommendations. Murphy testified he did not need to make any changes
to his report after hearing the testimony of the witnesses. In his report, Murphy recommended
petitioner be awarded the majority of the parenting time. Murphy based his recommendation on
“two factors.” First, Murphy noted respondent did not have her own home in August 2020 and
had to give T.D.S. to petitioner because she was unable to adequately care for him. Murphy
further noted that, “because [respondent] doesn’t have a job currently, she is relying on the
relationship that she has to avoid her becoming homeless, which puts her in a slightly unstable
position.” Second, Murphy considered the fact that T.D.S. had been living with petitioner and
attending the Collinsville school district for the past year and he did not “want to upend” his
environment. However, in making his recommendation, Murphy also stated he had no reason to
-8- believe either household or school district was better than the other and he would have
recommended equal parenting time if the parties lived closer to one another.
¶ 33 B. The Trial Court’s Judgment
¶ 34 On December 27, 2021, the trial court entered a written order finding it was in
T.D.S.’s best interests to award the majority of the parenting time to respondent. In its detailed
order, the court made findings with respect to each of the best-interest factors enumerated in
section 602.7 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS
5/602.7(b)(1)-(17) (West 2020)).
¶ 35 This appeal followed.
¶ 36 II. ANALYSIS
¶ 37 On appeal, petitioner argues the trial court erred in awarding the majority of the
parenting time with T.D.S. to respondent. Petitioner asserts “the court failed to take into
consideration multiple facts that weighed in [his] favor.” Most importantly, according to
petitioner, the court “failed to consider the obvious instability of [respondent].” Petitioner also
points to the fact that the GAL recommended he be awarded the majority of the parenting time.
¶ 38 As an initial matter, we note respondent did not file an appellee’s brief. However,
because the record is straightforward and we can easily address petitioner’s argument without the
aid of an appellee’s brief, we will decide the merits of this appeal. See, e.g., First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (“[I]f the record is
simple and the claimed errors are such that the court can easily decide them without the aid of an
appellee’s brief, the court of review should decide the merits of the appeal.”).
¶ 39 Section 602.7 of the Marriage Act provides “[t]he court shall allocate parenting
time according to the child’s best interests.” 750 ILCS 5/602.7(a) (West 2020). “In determining
-9- the child’s best interests for purposes of allocating parenting time, the court shall consider all
relevant factors.” Id. § 602.7(b). The relevant factors for the court to consider include, but are not
limited to, the following:
“(1) the wishes of each parent seeking parenting time;
(2) the wishes of the child, taking into account the child’s maturity and
ability to express reasoned and independent preferences as to parenting time;
(3) the amount of time each parent spent performing caretaking functions
with respect to the child in the 24 months preceding the filing of any petition for
allocation of parental responsibilities ***;
(4) any prior agreement or course of conduct between the parents relating
to caretaking functions with respect to the child;
(5) the interaction and interrelationship of the child with his or her parents
and siblings and with any other person who may significantly affect the child’s
best interests;
(6) the child’s adjustment to his or her home, school, and community;
(7) the mental and physical health of all individuals involved;
(8) the child’s needs;
(9) the distance between the parents’ residences, the cost and difficulty of
transporting the child, each parent’s and the child’s daily schedules, and the
ability of the parents to cooperate in the arrangement;
(10) whether a restriction on parenting time is appropriate;
(11) the physical violence or threat of physical violence by the child’s
parent directed against the child or other member of the child’s household;
- 10 - (12) the willingness and ability of each parent to place the needs of the
child ahead of his or her own needs;
(13) the willingness and ability of each parent to facilitate and encourage a
close and continuing relationship between the other parent and the child;
(14) the occurrence of abuse against the child or other member of the
child’s household;
(15) whether one of the parents is a convicted sex offender or lives with a
convicted sex offender and, if so, the exact nature of the offense and what if any
treatment the offender has successfully participated in; the parties are entitled to a
hearing on the issues raised in this paragraph (15);
(16) the terms of a parent’s military family-care plan that a parent must
complete before deployment if a parent is a member of the United States Armed
Forces who is being deployed; and
(17) any other factor that the court expressly finds to be relevant.”
Id. § 602.7(b)(1)-(17).
¶ 40 “[T]he best interests of the child is the ‘guiding star’ by which all matters
affecting children must be decided.” In re Parentage of J.W., 2013 IL 114817, ¶ 41. “A trial
court’s findings as to a child’s best interest are entitled to great deference because the trial judge
is in a better position than we are to observe the personalities and temperaments of the parties
and assess the credibility of the witnesses.” In re Marriage of Whitehead, 2018 IL App (5th)
170380, ¶ 21. We will not reverse a trial court’s best-interest determination “unless it is clearly
against the manifest weight of the evidence and it appears that a manifest injustice has occurred.”
In re Marriage of Eckert, 119 Ill. 2d 316, 328 (1988). “A decision is against the manifest weight
- 11 - of the evidence where the opposite conclusion is clearly evident or where the court’s findings are
unreasonable, arbitrary, and not based on any of the evidence.” In re Marriage of Bhati, 397 Ill.
App. 3d 53, 61 (2009). Under a manifest-weight-of-the-evidence standard, a court of review
“must not substitute its judgement for that of the trial court regarding the credibility of witnesses,
the weight to be given to the evidence, or the inferences to be drawn.” In re D.F., 201 Ill. 2d 476,
499 (2002).
¶ 41 Here, in its written order awarding respondent the majority of the parenting time,
the trial court made express findings with respect to each of the factors enumerated in
section 602.7 of the Marriage Act. See 750 ILCS 5/602.7(b)(1)-(17) (West 2020). The court
found the factors listed in paragraphs (1), (7), and (13) were neutral, the factors listed in
paragraphs (2)-(6), (8), and (12) favored respondent, and the factor in paragraph (9) favored
petitioner. On appeal, petitioner challenges the court’s findings with respect to the factors in
paragraphs (2)-(6), (8), (12), and (17). We will address each of petitioner’s contentions in turn.
¶ 42 The trial court found the factor in paragraph (2)—the wishes of the child—
slightly favored respondent. Id. § 602.7(b)(2). The court relied on respondent’s unrebutted
testimony that T.D.S. “wishes to primarily reside with her because his conduct at exchanges
indicates he does not want to go with [petitioner], and because the child gets excited at
exchanges when it is [respondent’s] time.” Petitioner argues the court erroneously failed to
consider that respondent also testified T.D.S. seems happy to see him at exchanges as well.
Initially, we note the court stated that because T.D.S. is nonverbal and therefore unable to
convey his wishes, it “afforded little weight” to this factor. Moreover, while it is true respondent
testified T.D.S. “seems happy to see his dad,” she also testified T.D.S. would struggle with her
whenever she attempted to get him ready to meet petitioner. Respondent testified it was not until
- 12 - she “finally” got T.D.S. ready and walked him all the way to petitioner’s vehicle that he would
let go of her hand and seemed happy to see petitioner. Based on the evidence, we cannot say it is
clearly apparent the court should have found this factor favored petitioner.
¶ 43 The trial court determined the factor in paragraph (3)—the amount of time each
parent spent performing caretaking functions in the two years preceding the filing of the petition
for allocation of parenting time—favored respondent. Id. § 602.7(b)(3). The court found
respondent provided the majority of care for T.D.S. until August 2020, when T.D.S. went to live
with petitioner while respondent sought appropriate housing. Petitioner contends the court failed
to consider the testimony that he “had the minor at a minimum of every weekend for at least two
or three days each week.” However, petitioner’s statement—that he cared for T.D.S. “at least
two or three days each week”—is itself an acknowledgment that respondent cared for the minor
four or five days each week. Thus, we cannot say the court erred in finding that respondent cared
for the minor the majority of the time leading up to the filing of the petition.
¶ 44 In finding the factor in paragraph (4)—any prior agreement or course of conduct
between the parents relating to caretaking functions—favored respondent, the trial court noted
respondent had performed the majority of the caretaking functions until August 2020, when “the
parties agreed Father would care for the child until Mother was back on her feet.”
Id. § 602.7(b)(4). Petitioner asserts the court erred because “[t]he ultimate question is whether
[respondent] moving back into the exact situation that caused the need for [T.D.S.] to reside with
[petitioner] constitutes getting back on her feet. If not, then the parties’ agreement that [T.D.S.]
was to continue to live with [petitioner] should have been given more weight.” It appears
petitioner is asking this court to substitute its judgment for that of the trial court in determining
whether respondent’s situation had stabilized after she moved back in with Burcham. We decline
- 13 - to do so. See D.F., 201 Ill. 2d at 499 (stating a court of review “must not substitute its judgement
for that of the trial court regarding the credibility of witnesses, the weight to be given to the
evidence, or the inferences to be drawn”). The trial court concluded respondent was “back on her
feet,” and petitioner fails to point to anything in the record demonstrating the opposite
conclusion was clearly apparent.
¶ 45 The trial court concluded the factor in paragraph (5)—the child’s interaction and
interrelationship with his parents, siblings, and any other person who significantly affects the
child’s best interests—favored respondent. 750 ILCS 5/602.7(b)(5) (West 2020). The court
found T.D.S. had a “close bond and positive relationship” with respondent and Burcham. The
court also found, based on Reichert’s testimony, that T.D.S. had a close bond with his friends,
teachers, and other staff in the Carlinville school district. Petitioner argues the court “failed to
give any weight to the relationship that [T.D.S] had with his father or his father’s family.”
However, the court explicitly noted in its written order that “the child interacts with his paternal
grandmother and paternal adult half-sister.” Moreover, petitioner did not present any evidence
that T.D.S. was uniquely attached to any of his family members. Instead, he merely testified
T.D.S. occasionally spent time with his family members. Thus, it is not clearly apparent this
factor favored petitioner.
¶ 46 Petitioner also challenges the trial court’s finding with respect to the factor in
paragraph (6)—the child’s adjustment to his home, school, and community. Id. § 602.7(b)(6).
Petitioner points to the testimony that T.D.S. was doing well in the Collinsville school district.
However, he fails to acknowledge the testimony by Burcham that T.D.S. “ha[d]n’t been
hi[m]self” since living with petitioner for the majority of the time and appeared “run down”
when he returned to respondent’s house after spending the week with petitioner. Moreover,
- 14 - Reichert testified the Collinsville school district was not providing any services that the minor
would not receive in Carlinville. Reichert also testified that, in her opinion, it “would be an easy
transition” for T.D.S. to transfer back to the Carlinville school district because “he would be
returning to the same teachers, the same assistants, the same therapists who have known him for
eight years.” Thus, it is not clearly apparent this factor favored petitioner merely because T.D.S.
had been doing well in the Collinsville school district.
¶ 47 The trial court found the factor in paragraph (8)—the child’s needs—favored
respondent. Id. § 602.7(b)(8). The court noted respondent had always been attentive to T.D.S.’s
medical and dietary needs. It found respondent was unemployed and had plenty of time to attend
to T.D.S. and that the Carlinville school district was better situated to meet T.D.S.’s development
needs due to the “school’s long history and familiarity with the child’s education and abilities.”
Petitioner argues “there was ample evidence [he] was also able to meet [T.D.S.’s] needs” and
“[t]he court should not have penalized [him] for working given the overwhelming evidence it has
not affected his ability to care for or meet [T.D.S.’s] needs and there was no evidence that the
Carlinville school district was in a better position to address [his] needs.” Notwithstanding
petitioner’s assertion, we cannot say the trial court was incorrect in its assessment. Respondent
testified T.D.S. had gained nearly 30 pounds in the short period of time he had been living
mostly with petitioner. According to respondent, petitioner told T.D.S.’s doctor that “he could
only get [T.D.S.] to eat popcorn, pork rinds, and milk.” Moreover, respondent and Burcham both
testified T.D.S. regularly had diaper rashes when he would return to their home after spending
the week with petitioner. Thus, the court’s finding was not arbitrary or unsubstantiated by the
evidence.
- 15 - ¶ 48 The trial court found the factor in paragraph (12)—the willingness and ability of
each parent to place the needs of the child ahead of his or her own needs—weighed in favor of
respondent. Id. § 602.7(b)(12). The court noted respondent’s “life has revolved around the child
and his health, safety, and welfare.” The court also noted she had to make a “difficult choice” in
August 2020 to arrange for T.D.S. to live with petitioner “until she got back on her feet.”
Petitioner asserts that because respondent missed one of T.D.S.’s eye doctor appointments when
she had to take Burcham to the hospital, there is “sufficient evidence” demonstrating respondent
is unable to place the child’s needs ahead of her own. Initially, we note petitioner acknowledged
at the hearing that respondent “had a legitimate reason” to miss the eye doctor appointment.
Moreover, missing a single appointment because of a medical emergency is not compelling
evidence that a parent is unable to place her child’s needs above her own. As noted by the court,
the evidence presented demonstrates respondent had worked to meet T.D.S.’s needs since he was
born.
¶ 49 Lastly, petitioner maintains “the most significant factor the court failed to take
into consideration was the stability of the parties.” Id. § 602.7(b)(17). Petitioner argues the court
“failed to consider the obvious instability of [respondent] when making its decision.” Petitioner
contends respondent’s current situation is no different than her situation was in August 2020, and
he also points out the fact that the GAL recommended he receive the majority of the parenting
time. First, we note the trial court “is not bound by the GAL’s recommendation.” In re Marriage
of Virgin, 2021 IL App (3d) 190650, ¶ 51. Moreover, petitioner is incorrect in stating the court
failed to consider respondent’s level of stability. In its written order, the court explicitly
acknowledged the GAL “recommended [petitioner] receive the majority of parenting time based
solely on the stability of the parties.” Nonetheless, the court found “no testimony was presented
- 16 - to suggest [respondent’s] life with her fiancé moving forward would not be stable. In fact, the
testimony presented was to the contrary, and the Court cannot follow the GAL’s
recommendation based on speculation alone.” While petitioner’s contention is supported by the
GAL’s recommendation, there is also sufficient evidence in the record to support the court’s
determination. Thus, we cannot say its judgment was erroneous.
¶ 50 Accordingly, for the reasons discussed, we find the trial court’s best-interest
determination awarding respondent the majority of the parenting time with T.D.S. was not
against the manifest weight of the evidence.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we affirm the trial court’s judgment.
¶ 53 Affirmed.
- 17 -