Gonzalez v. Kraft (In re Parentage A. I. G-K.)
| Decision Date | 14 March 2018 |
| Docket Number | No. 2-17-0601,2-17-0601 |
| Citation | 2018 IL App (2d) 170601 -U |
| Parties | In re PARENTAGE OF A. I. G-K., a Minor (Adrian Gonzalez, Petitioner-Appellant, v. Jennifer Kraft, Respondent-Appellee). |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kane County.
Honorable Joseph M. Grady, Judge, Presiding.
ORDER
¶ 1 Held: The trial court erred in denying father's request to award him primary residential custody of his daughter. Reversed and remanded.
¶ 2 Petitioner, Adrian Gonzalez, appeals from the trial court's denial of his request for modification of custody of his and respondent's, Jennifer Kraft's, minor daughter, A. I. G-K., to award him primary residential custody. We reverse and remand.
¶ 4 Adrian and Jennifer began living together in 2005 and never married. A. was born on December 1, 2005. On February 8, 2012, Adrian, age 31, sought to obtain custody of A. The trial court appointed Lidia Serrano as the (first) guardian ad litem (GAL) for A.
¶ 6 For background purposes, we summarize the first GAL's report, dated June 19, 2012. At the time, the parties and A. resided in Sugar Grove. Serrano wrote that A. was in good health, well cared for, and happy. A. was about to start first grade and excelled at sight words at school and received advanced worksheets. She was extremely creative and active. A. was very close to Adrian's family, who lived close by and with whom she spent substantial time. She was also close to Jennifer's family, but they did not have the same level of daily involvement. A. was raised in an interfaith home, with Adrian being Christian and Jennifer being Jewish.
¶ 7 Jennifer, according to Serrano, has a bachelor's degree and worked as a staffing manager at Robert Half International in Rosemont. Her work hours were flexible, and she intended to move to Skokie. Adrian also has a bachelor's degree and worked as a consultant at Accenture. His client was located in Detroit, and Adrian was required to work there during the week. However, Adrian was in the process of transferring to a local client. (This did not occur in 2012.)
¶ 8 The parties had lived together since 2005, but spent only weekends together due to Adrian's work. They initially lived with Adrian's sister and moved out on their own in 2009. The parties admitted that their relationship suffered while they lived with Adrian's sister, but improved after they moved out.
¶ 9 The parties agreed to share joint custody, but disagreed on residential custody. Jennifer believed that A. was thriving under her care and that she was there for her on a daily basis,whereas, if Adrian had residential custody, his family, who were alienating themselves from Jennifer and trying to alienate A. from Jennifer, would be raising A. Adrian's concerns were that Jennifer's interactions with A. were limited, she was lax with her schedule and bounced from house to house (her residence was in Sugar Grove, but she always went back and forth from there to her family's Skokie home), she did not ensure that A. ate well, she was not physically active (i.e., good at arts and crafts, but does not enjoy outdoor activities), "frequently" smoked marijuana (Adrian was concerned about her ability to keep a job), took Vicodin (which made her "more lazy"), and would probably cut ties with Adrian's family.
¶ 10 The GAL opined that joint custody would be in A.'s best interests. As to residential custody, she recommended that Jennifer be awarded residential custody, because she had acted as A.'s primary caregiver and had the ability to continue to do so. The GAL expressed doubts as to the sincerity of Adrian's concerns about Jennifer; he had not raised them with Jennifer and had admitted that A. was healthy, doing well in school, and was happy. The GAL acknowledged that A. would have to adjust to a new school if Jennifer had residential custody, but opined that A. would be better able to adjust to those changes than to not being with Jennifer on a daily basis. As to Jennifer's depression and drug use, the GAL opined that they did not pertain to Jennifer's ability to provide for A.'s primary care and that Adrian did not appear to be concerned about them because he entrusted Jennifer with their daughter's care. Also, Adrian had acknowledged that Jennifer had not been depressed for a long time and had not been diagnosed with it. Jennifer herself stated that she was down, not depressed, when they lived at Adrian's sister's house, because she felt uncomfortable there. As to her marijuana use, Adrian admitted that he uses it himself and that he was not concerned about Jennifer's use as it related to her ability to care forA., only as to her ability to keep a job. As to Vicodin, Jennifer admitted to having used it once when she was suffering from bulging discs.
¶ 12 In a July 10, 2012, order, the trial court noted that the parties accepted and agreed to the GAL's and trial court's custody recommendations. In an agreed order entered on August 22, 2012, the trial court granted Jennifer's motion for temporary child support. It ordered Adrian, who earned $104,000 in annual gross income, to pay Jennifer, who earned about $40,000 in gross annual income, $1,224 per month, plus 20% of any gross income in excess of $8,666 per month.
¶ 13 On October 17, 2012, the parties entered into a parentage judgment and joint custody agreement, whereby Jennifer was awarded residential custody and Adrian was granted parenting time on alternating weekends, certain holidays and a summer schedule, and additional time as agreed. Adrian was not awarded weekday parenting time. The agreement also provided that both parties would have equal rights and responsibilities concerning A.'s rearing and overall well-being and decision-making on issues concerning her growth and development, including choice of schools. "[A]ll major decision regarding the child's life shall be made jointly, by and between the parties."
¶ 15 On July 29, 2015, Adrian petitioned to modify custody, alleging substantial changes in the parties' and A.'s circumstances since entry of the parentage judgment and joint custody agreement. Specifically, Adrian alleged that: (1) Jennifer had changed her residence multiple times, resulting in disruption to Avya's relationships and changes in schools, which emotionally upset the child; (2) Jennifer lived with a male companion, Nicklaus Hubbs, whom she starteddating in 2011, had not married, and had told A. that he is her "step-dad"; (3) Jennifer had a second child, M., out of wedlock that had caused A. to feel unwanted; (4) Jennifer did not support and assist A. with her school work and neglected to provide her with money for lunch tickets at school; (5) Jennifer did not get A. to school on time and allowed her to be absent without any reason; (6) Jennifer failed to arrange for regular medical, optical, and dental checkups; (7) Jennifer did not provide consistent discipline for Avya and used excessive forms of discipline; (8) Jennifer frequently failed to attend A.'s school activities; (9) Jennifer refused to consult with Adrian on matters required by the agreement; and (10) although, at the time of the agreement, Adrian travelled four to five days per week for work and could not spend much time with A., his job requirements changed and, currently, he seldom travels. Adrian sought residential or sole custody of A., arguing that this change was in her best interests. In her response, Jennifer denied the allegations.
¶ 16 On April 29, 2016, the trial court appointed Bradley David as (the second) GAL for A.
¶ 18 On August 9, 2016, the second GAL filed his report with the court. He noted that he had interviewed the parties and A. He had also conducted home visits at both residences with A. present. The GAL also reviewed documentation provided by the parties and noted that Adrian's work clients were now located in Burr Ridge and Racine, Wisconsin, and that Adrian was no longer required to spend overnights away from his Sugar Grove residence and has opportunities to work from home on some occasions. Also, since the parenting agreement was entered into, the parties had informally agreed that Adrian have additional parenting time, including Sunday overnights, Wednesday overnights, and alternating weeks during the summer. The GALrecommended that Jennifer retain primary residential custody and that parenting time be modified to incorporate the new schedule to which the parties had informally agreed.
¶ 19 Addressing Jennifer's multiple relocations and the resulting changes in schools for A., the GAL noted that, since the parties' split in 2012, Jennifer has lived in Arlington Heights, Palos Heights, Plainfield, and Joliet. With the exception of second and third grades, A. has attended a different school every year. In fourth grade she attended Riverview Elementary School in Plainfield. Jennifer explained that she could not keep A. at that school due to financial issues. Currently, A. is enrolled at Cunningham Elementary School in Joliet for fifth grade. According to the GAL, Jennifer admitted that moving schools on a yearly basis was not what is best for her daughter. However, Jennifer told the GAL that A. is resilient and always does a good job of making new friends wherever she attends school. A. confirmed this to the GAL, stating that she always ends up being one of the most popular kids in her class. The GAL found it "of significant importance" that A. earned, with few exceptions, A's and B's in school and had not exhibited any behavioral issues. Also, the GAL wrote, A. was not concerned about the...
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