Marriage of Wycoff, In re

• Court: Appellate Court of Illinois
• Writing for the Court: COOK
• Citation: Marriage of Wycoff, In re, 639 N.E.2d 897, 266 Ill.App.3d 408 (Ill. App. 1994)
• Decision Date: 15 August 1994
• Docket Number: No. 4-93-0984,4-93-0984
• Parties: , 203 Ill.Dec. 338 In re the MARRIAGE OF Judith Ann WYCOFF, Petitioner-Appellant, and Kevin Lee Wycoff, Respondent-Appellee.

Page 897

639 N.E.2d 897

266 Ill.App.3d 408, 203 Ill.Dec. 338

In re the MARRIAGE OF Judith Ann WYCOFF, Petitioner-Appellant and Kevin Lee Wycoff, Respondent-Appellee.

No. 4-93-0984.

Appellate Court of Illinois Fourth District.

Argued July 20, 1994.

Decided Aug. 15, 1994.

Gregory A. Scott (argued), Scott & Scott, P.C., Springfield, for appellant.

Robert B. Goldman (argued), Springfield, for appellee.

Justice COOK delivered the opinion of the court:

The trial court terminated joint custody, then terminated the primary physical custody of the mother and awarded sole custody to the father. We affirm the termination of joint custody but reverse the award of sole custody to the father. This case was argued before us on July 20, 1994. Because we reverse a custody award, all members of this panel have given this case priority over our other work.

Judith Ann Wycoff (now Anderson) and Kevin Lee Wycoff were married July 10, 1982. A child, Brittany, was born in December 1984. On May 22, 1987, a judgment was entered by the Sangamon County circuit court terminating the marriage. The judgment incorporated the parties' agreement for joint custody, with Judith to have physical custody, and Kevin to have overnight visitation every other Friday and Saturday nights, as well as visitation Monday and Thursday evenings from 4 to 9 p.m. Visitation generally followed that schedule although Judith presented evidence Kevin often worked Monday or Thursday nights and on other visitation evenings sometimes played with his Christian rock band.

Kevin married Lisa Jostes on April 7, 1990. Judith married Ted Anderson, a resident of La Harpe, Illinois, on June 19, 1993. Before Judith's marriage Kevin filed a "Counter-petition for Modification of Judgment of Dissolution of Marriage," on April 12, 1993. The petition recited that there had been a substantial change in circumstances, that the parties were unable to resolve a dispute concerning Judith's decision to move from Sangamon County, that joint legal custody was no longer in Brittany's best interests, and requested that Kevin be awarded sole legal and physical custody. Judith filed her own petition to modify, asking that sole custody be awarded to her, on April 27. She then filed an "Emergency Petition to Modify Visitation Schedule" on May 7.

After hearing evidence for three days, the trial court, on June 16, 1993, denied the emergency petition to modify the visitation order, citing section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (Act), which provides "the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health." (750 ILCS 5/607(c) (West 1992).) The court then directed that the physical custody of Brittany be alternated each week between Kevin and Judith through August 18.

After five days of testimony in August, the trial court entered an order that clear and convincing evidence warranted termination of the award of joint custody, and that the best interests of the child warranted placing permanent custody with Kevin. The order noted that Brittany expressed a preference to live with Judith, "but has stated no reasons to this Court for her preference." The order did not mention that Brittany's guardian ad litem (GAL), who had spent a considerable amount of time with Brittany over the months of the hearing, had recommended that custody of Brittany be placed with Judith. Judith was ordered to pay child support of $300 per month. The court also directed that the GAL's fees of $8,119.09 be divided equally between the parties.

Stability for the child is a major consideration both with an initial award of custody under section 602 of the Act (750 ILCS 5/602 (West 1992)) and with a modification of custody under section 610 of the Act (750 ILCS 5/610 (West 1992)). Some decisions suggest that "stability" is achieved when a child is moved from a home where there is turmoil to one where there is quiet. (See In re Marriage of Pease (1982), 106 Ill.App.3d 617, 62 Ill.Dec. 389, 435 N.E.2d 1361; In re Marriage of Apperson (1991), 215 Ill.App.3d 378, 384, 158 Ill.Dec. 864, 868, 574 N.E.2d 1257, 1261.) "Stability" is also used in the sense of continuity, the absence of change. Some child development experts believe:

"that interruption of a continuous relationship with a loving and nurturing parent invariably leaves scars that do not heal completely and may affect the child's future ability to form relationships and become a good parent himself. Such experts are likely to recommend that the child stay with the parent to whom he has the stronger attachment (if they can determine which parent that is), even though the other parent may be better off, more intelligent, more consistent, more patient, and generally more appealing." (S. Goldstein & A. Solnit, Divorce & Your Child 66 (1984) (hereinafter Goldstein).)

It is a mistake to change custody from a good custodian in hopes that another may be better.

The policy favoring stability finds its strongest expression in cases involving attempts to modify a previously made custody decision, under section 610 of the Act. By creating a presumption in favor of the present custodian, the legislature in section 610 has sought to promote a stability and continuity in the child's custodial and environmental relationships which is not to be lightly overturned. (In re Custody of Harne (1979), 77 Ill.2d 414, 421, 33 Ill.Dec. 110, 113, 396 N.E.2d 499, 502.) " '[I]nsuring the decree's finality is more important than determining which parent should be the custodian.' " Harne, 77 Ill.2d at 420, 33 Ill.Dec. at 112-13, 396 N.E.2d at 501-02, quoting Uniform Marriage and Divorce Act, 9A U.L.A. § 409, Commissioners' Note (1973).

Development of the concept of joint custody has raised some questions about the policies of section 610, and how joint custody orders should be modified or terminated. The emphasized language below was added to section 610(b) of the Act when the original, limited, version of joint custody was enacted in 1982 (see Pub.Act 82-1002, § 2, eff. Sept. 17, 1982 (1982 Ill.Laws 2609, 2616)):

"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 [ (the change clause) ], 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 [ (the agreement clause) ]. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination." (Emphasis added.) (750 ILCS 5/610(b) (West 1992).)

The final sentence in the section was added when the provisions for joint custody were broadened, effective January 1, 1986. See Pub.Act 84-795, eff. Jan. 1, 1986 (1985 Ill.Laws 4853).

Confusion over the application of section 610 to joint custody orders arises from the failure to distinguish two separate questions: (1) whether the joint custody arrangement should be replaced by a sole custody arrangement, and (2) whether custody should be changed from the primary physical custodian.

It could be argued that when joint custody is terminated the court starts over in determining the best interest of the child, and ignores the period of time the child has spent with the party having physical custody under the joint custody order. That argument has been rejected. In In re Marriage of Kartholl (1986), 143 Ill.App.3d 228, 233, 97 Ill.Dec. 347, 350, 492 N.E.2d 1006, 1009, a case similar to this one, the appellate court held the legislative presumption of section 610 in favor of the present custodian applied to the primary physical custodian in a joint custody case. Other courts have agreed. The "physical custodian[ ] is entitled to the benefit of the presumption favoring the existing custodial arrangement which should not be lightly overturned." (In re Marriage of Good (1991), 208 Ill.App.3d 775, 778, 153 Ill.Dec. 151, 153, 566 N.E.2d 1001, 1003.) A petition to change the primary custodian of the child, though not a petition to revoke joint custody, is a modification governed by section 610 of the Act. (In re Marriage of Noble (1989), 192 Ill.App.3d 501, 506, 139 Ill.Dec. 133, 135, 548 N.E.2d 518, 520; In re Marriage of Oros (1994), 256 Ill.App.3d 167, 168, 194 Ill.Dec. 604, 605-06, 627 N.E.2d 1246, 1247-48.) There may be some joint custody cases where there is no primary physical custodian, where the child spends approximately equal time with each parent, but such cases are unusual. See Oros, 256 Ill.App.3d at 170, 194 Ill.Dec. at 607, 627 N.E.2d at 1249 (alternating custody orders undesirable).

Kevin argues that in other cases the court refused to give any preference to the primary physical custodian after a joint custody arrangement was terminated. Although our decision in Apperson was made under section 602 of the Act, we did not there discuss the issue considered here, and sole custody was in fact awarded the former primary physical custodian. (Apperson, 215 Ill.App.3d at 384, 158 Ill.Dec. at 868, 574 N.E.2d at 1261.) The issue was also not discussed in Prince v. Herrera (1994), 261 Ill.App.3d 606, 199 Ill.Dec. 174, 633 N.E.2d 970. In re Marriage of England (1987), 158 Ill.App.3d 1005, 1010, 111 Ill.Dec. 191, 194, 512 N.E.2d 95, 98, is difficult to reconcile with our decision here,...