Custody of Thompson, In re

• Court: Appellate Court of Illinois
• Writing for the Court: SCOTT; ALLOY, P. J., and STOUDER
• Citation: Custody of Thompson, In re, 403 N.E.2d 716, 83 Ill.App.3d 97, 38 Ill.Dec. 485 (Ill. App. 1980)
• Decision Date: 09 April 1980
• Docket Number: Nos. 79-494,79-398,s. 79-494
• Parties: , 38 Ill.Dec. 485 In re CUSTODY of Mark THOMPSON, a minor. Andrew J. THOMPSON, Petitioner-Appellee, v. Mary Lynne THOMPSON, Respondent-Appellant.

Page 716

403 N.E.2d 716

83 Ill.App.3d 97, 38 Ill.Dec. 485

In re CUSTODY of Mark THOMPSON, a minor Andrew J. THOMPSON, Petitioner-Appellee, v. Mary Lynne THOMPSON, Respondent-Appellant.

Nos. 79-494, 79-398.

Appellate Court of Illinois, Third District.

April 9, 1980.

Matthew A. Maloney, Pierson & Maloney, Princeton, for respondent-appellant.

John V. Hanson, Hanson & Hanson, Morris, for petitioner-appellee.

SCOTT, Justice.

This is an appeal from an order of the circuit court of Grundy County, transferring custody of the minor child of the parties from the mother to the father.

On July 26, 1976, petitioner, Andrew J. Thompson, and respondent, Mary Lynne Thompson, were divorced in Bureau County, Illinois. Custody of the minor child of the parties, Mark Thompson, was awarded to the respondent.

On October 31, 1978, the petitioner filed a petition to enroll the divorce decree in Grundy County. He alleged that the respondent had removed their minor child from the State of Illinois without leave of court and had refused him visitation.

On October 31, 1978, without notice to the respondent, an order was entered enrolling the decree, fixing an appeal date, and a date for hearing on a contempt citation for refusing petitioner visitation. A temporary restraining order was also entered, without notice, granting physical custody of Mark, the five year old son of the parties, to petitioner.

On November 29, 1978, a petition and temporary restraining order were served on the respondent. On January 30, 1979, she filed a petition to modify the decree of divorce wherein she asked permission to remove the child to the State of Texas. On February 5, 1979, petitioner filed a petition to modify asking that he be granted custody of the child. Hearing on all matters was held February 13, 1979.

The petitioner called Ruby Franklin, a counselling psychologist, as a witness. She had investigated the child's psychological and emotional condition. She had also given him projective tests, consisting of a series of pictures into which the child projects himself and tells a story. Franklin testified that the child has a real fear of monsters which is the result of not having monsters explained to him. There is a correlation between his home environment and his response to the pictures. The child apparently had been left alone and has a great fear of being alone. Franklin also testified that continuation of the environment would affect the child further and that he should remain with his father (the petitioner) and step-mother.

The respondent testified under Section 60 of the Civil Practice Act. There had been no hearing on the custody issue at the time of the divorce since the parties had agreed that she would have custody. She had told her husband that she intended to move to Texas one month prior to the time she made the move. The petitioner offered her his Master Charge card so that she could pay for the move.

The respondent and the son initially lived with friends in Texas but subsequently rented a house and still later an apartment. While in Texas the respondent attempted to have the child support increased. Ultimately, as the result of financial difficulties, she sent Mark to Princeton, Illinois, to live with her mother.

The petitioner, in his own behalf, testified that he is employed as vice president at the First National Bank of Morris. He further testified that he took Mark from the respondent's mother on October 27, 1979, and that prior to this time he had not seen his son since May 15, 1979.

The petitioner admitted that he told the respondent that it was agreeable with him if she moved to Texas and took their son with her. He further testified that Mark had lived with him for a period of time prior to respondent's move to Texas. He testified that the respondent had not only threatened him and his present wife, Kristina, but had threatened to harm herself if Mark were not returned to her.

It is the petitioner's opinion that he gets along well with his son and feels that the child's behavior has improved since he has been living in his home. He admitted that he did not tell the respondent about the child's bad habits. It was established that the petitioner has a gross income of $20,000.00 per year.

Kristina Thompson, petitioner's present wife, testified that Mark behaved poorly when he first lived with them but that he had improved greatly. When Mark first lived with them he could not sit quietly, ate with his hands, wanted only junk food, and wanted to watch television all the time.

The respondent testified that after the divorce the parties stayed apart for six months, but they began living together on weekends during her ex-husband's visitation with Mark and had sexual relations. The respondent further stated that during a telephone conversation she told petitioner that she knew he was to be married and that she informed him of her plans to move to Texas and that he assured her he wouldn't give her any problems. After the move Mark returned to Illinois for visitation with the petitioner and she was informed in a telephone conversation with him that the child was well adjusted and well mannered and that she was doing a good job raising him.

She further testified that during the weekend visitations she had become pregnant by the petitioner and that he advised an abortion because she could not raise two children by herself and that he would and did provide money for the abortion.

The respondent further stated that her gross income is $8,200 per year and that she sent her child, Mark, to her mother because she couldn't support him and that she also could not pay her attorney.

The trial court then interviewed the child, who stated that he had seen a black monster but knew there is no such thing as a monster; that he knew he had lived in Texas with his mother, but that he doesn't call her mother anymore because she isn't nice to him, and that she could be nicer. During the interview the child informed the court that his father told him to say those things about his mother and that he was also told by his father than he could have only one mother, namely Kristina, petitioner's present wife.

The trial court subsequently ordered the parties to undergo examination by an independent psychologist. The psychologist, after interviewing the parties, found that both of them could provide an adequate home for Mark, and also found that Mark required psycho-therapy.

After the report by the psychologist, the trial court ordered that the custody of Mark be transferred to the petitioner.

On appeal respondent raises the following issues: (1) whether the decision of the trial court was against the manifest weight of the evidence in finding that Mark's home environment with her seriously endangered his mental or emotional health; (2) whether the trial court erred in considering her previous abortion insofar as the same affected Mark; (3) whether the trial court ignored the statutory mandate by considering Mark's integration into petitioner's home without her consent; (4) whether the trial court applied the appropriate statutory standards in changing custody; (5) whether the trial court erred in failing to order the petitioner to pay her attorney fees; (6) whether the trial court's denial of her petition for leave to remove Mark from Illinois was against the manifest weight of the evidence and an abuse of discretion and should be reversed.

Directing our attention to the issues we note that on October 1, 1977, the Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 601, et seq.) became effective. Prior to the effective date, a party seeking a change in custody had to prove that there had been a material change in the circumstances of either parent which affected the well-being of the child. (Arden v. Arden (1960), 25 Ill.App.2d 181, 166 N.E.2d 111.) The Marriage and Dissolution of Marriage Act is a codification of that rule with the added guidelines of, to-wit, the existence of any agreement between the parties, integration into the family of the petitioner with the consent of the custodian, and a...