People ex rel. Bukovich v. Bukovich, No. 40421

CourtSupreme Court of Illinois
Writing for the CourtUNDERWOOD
Citation39 Ill.2d 76,233 N.E.2d 382
Docket NumberNo. 40421
Decision Date19 January 1968
PartiesThe PEOPLE ex rel. Joseph J. BUKOVICH, Appellant, v. Sally A. BUKOVICH, Appellee.

Page 382

233 N.E.2d 382
39 Ill.2d 76
The PEOPLE ex rel. Joseph J. BUKOVICH, Appellant,
v.
Sally A. BUKOVICH, Appellee.
No. 40421.
Supreme Court of Illinois.
Jan. 19, 1968.

[39 Ill.2d 77]

Page 383

Vincent L. Knaus, Chicago, for appellant.

John S. Kavanaugh, Chicago, Philip J. McGuire, Chicago, of counsel, for appellee.

UNDERWOOD, Justice.

This is a direct appeal by the plaintiff, Joseph Bukovich, from a judgment of the circuit court of Cook County denying his petition for a writ of Habeas corpus by which he sought to take custody of his 6-year-old son, Mark, from the boy's mother, Sally Bukovich. The judgment appealed from is contrary to the prior rulings of the circuit court of Porter County, Indiana, and the Supreme Court of Texas, both of which declared the right to custody of Mark to be vested in the plaintiff, and we must determine whether the Indiana and Texas judgments were denied full faith and credit in violation of the first section of article IV of the Federal constitution.

The plaintiff and the defendant were married in 1958 in the State of Indiana and divorced there on June 15, 1962. Mark was born in January, 1960. The divorce decree awarded custody of the infant child to the mother while the father was ordered to pay for his support and given visitation rights. Between June, 1962, and December, 1963, there were several claims of denials of the father's visiting rights. Apparently in December the defendant asked the Porter County Circuit Court for permission to take Mark to California where she had been offered a job. On December 2, 1963, however, the Indiana court conducted a hearing pursuant to a petition of the plaintiff that charged the defendant with violating his rights of visitation. When the mother failed to personally appear in that proceeding the court [39 Ill.2d 78] found her to be in contempt of court, that she was not a fit person to have custody of the minor child and awarded custody of Mark to his father.

Soon after the December 2 hearing, the defendant came to Illinois and apparently she has never returned to Indiana since the transfer of Mark's custody to his father. Later in December she secured a new job in Texas and went there with Mark 'to start a new life.' In January, 1964, the father instituted Habeas corpus proceedings in Texas for the custody of the minor child, which, after a trial resulted in a finding for the mother. This judgment was appealed by plaintiff, sustained by the Texas Court of Civil Appeals, Bukovich v. Bukovich, 391 S.W.2d 189, but reversed in January, 1966, by the Supreme Court of Texas, 399 S.W.2d 528. During the pendency of the Texas appeals the defendant moved back to Illinois with her son in April, 1964, and has since been regularly employed here as a teller in a Worth, Illinois, bank.

In February, 1966, relying on the Indiana and Texas awards in his favor, the father filed the Habeas corpus action with which we are concerned praying that the custody of Mark be vested in him. After a full hearing on the merits, plaintiff's petition was denied. He now urges that the child custody determinations of two sister State courts are binding on the Illinois courts and that we are not free to 'go behind' these determinations to reach a different result.

While the conduct of the mother in flouting the Indiana order should be neither rewarded nor condoned, the paramount consideration must be the welfare of the child, and we do not agree that rulings of the Indiana trial court and the Texas Supreme Court precluded the Illinois trial court from reaching a different conclusion. It is of decisive importance here that the determination of the Indiana trial court related to the fitness of the mother to retain custody of the boy as of December 2, 1963, and the decision of the Texas Supreme Court was Res judicata on the factual situation as presented to the Texas circuit court in January, [39 Ill.2d 79] 1964. The hearing in the circuit court of Cook County was conducted on February 10, 1966, and considered

Page 384

the circumstances of the parties as they existed more than two years later.

While decisions of this court are infrequent in child custody matters, it is apparent from both our opinions and those of the appellate court that it is proper in this State for a court in a Habeas corpus proceeding to look into the question of a child's best interests before awarding custody. (People ex rel. Stockham v. Schaedel, 340 Ill. 560, 173 N.E. 172; Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556, 565, 158 N.E.2d 613.) The courts of Illinois have both the responsibility and the power to inquire into the right to custody and concomitant best interests of a child within the jurisdiction where the passage of time since a prior custody determination of a sister State makes it possible that the circumstances pertaining to the fitness of the parties seeking to be awarded custody of the minor may have substantially changed. (Halverson v. Halverson, ...

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27 practice notes
  • Petition of Kirchner, No. 78101
    • United States
    • Supreme Court of Illinois
    • February 28, 1995
    ...of habeas corpus, his objective was not to obtain a hearing for Richard but to prevent one. In People ex rel. Bukovich v. Bukovich (1968), 39 Ill.2d 76, 233 N.E.2d 382, this court observed, "While decisions of this court are infrequent in child custody matters, it is apparent from both our ......
  • Crawley v. Bauchens, No. 71--224
    • United States
    • United States Appellate Court of Illinois
    • August 6, 1973
    ...following a prior custody order in another State. Unquestionably, such amendatory orders are proper. (People ex rel Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382; Wilner v. Wilner, 131 Ill.App.2d 891, 266 N.E.2d 918.) The proceeding in the Canal Zone is not one arising out of a 'change......
  • People ex rel Irby v. Dubois, No. 63237
    • United States
    • United States Appellate Court of Illinois
    • August 13, 1976
    ...be entrusted with the custody of children of tender years, (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382) our 1970 Illinois constitution now provides that equal protection of the law shall not be denied or abridged because of se......
  • People ex rel. Edwards v. Livingston, No. 41472
    • United States
    • Supreme Court of Illinois
    • March 27, 1969
    ...212] or should there have been such a change and it does not appear in the record before us. Cf. People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 81, 223 N.E.2d 382; Mackie v. Mackie, 88 Ill.App.2d 61, 232 N.E.2d Reversed and remanded, with directions. ...
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27 cases
  • Petition of Kirchner, 78101
    • United States
    • Supreme Court of Illinois
    • February 28, 1995
    ...of habeas corpus, his objective was not to obtain a hearing for Richard but to prevent one. In People ex rel. Bukovich v. Bukovich (1968), 39 Ill.2d 76, 233 N.E.2d 382, this court observed, "While decisions of this court are infrequent in child custody matters, it is apparent from both our ......
  • Crawley v. Bauchens, 71--224
    • United States
    • United States Appellate Court of Illinois
    • August 6, 1973
    ...following a prior custody order in another State. Unquestionably, such amendatory orders are proper. (People ex rel Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382; Wilner v. Wilner, 131 Ill.App.2d 891, 266 N.E.2d 918.) The proceeding in the Canal Zone is not one arising out of a 'change......
  • People ex rel Irby v. Dubois, 63237
    • United States
    • United States Appellate Court of Illinois
    • August 13, 1976
    ...be entrusted with the custody of children of tender years, (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382) our 1970 Illinois constitution now provides that equal protection of the law shall not be denied or abridged because of se......
  • People ex rel. Edwards v. Livingston, 41472
    • United States
    • Supreme Court of Illinois
    • March 27, 1969
    ...212] or should there have been such a change and it does not appear in the record before us. Cf. People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 81, 223 N.E.2d 382; Mackie v. Mackie, 88 Ill.App.2d 61, 232 N.E.2d Reversed and remanded, with directions. ...
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