Pleasant v. Pleasant

• Citation: 256 Ill.App.3d 742,195 Ill.Dec. 169,628 N.E.2d 633
• Decision Date: 08 December 1993
• Docket Number: No. 1-91-3845,1-91-3845
• Parties: , 195 Ill.Dec. 169 In re the Marriage of Jimmie PLEASANT, Jr., Petitioner-Appellee, v. Sandra PLEASANT, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 633

628 N.E.2d 633

256 Ill.App.3d 742, 195 Ill.Dec. 169

In re the Marriage of Jimmie PLEASANT, Jr., Petitioner-Appellee, v. Sandra PLEASANT, Respondent-Appellant.

No. 1-91-3845.

Appellate Court of Illinois,

First District, Third Division.

Dec. 8, 1993.

Steven A. Drizin, Laura J. Miller, Northwestern University Legal Clinic, Chicago, for respondent-appellant.

Milton A. Tornheim, Ltd., Chicago, for petitioner-appellee.

Gerald P. Nordgren, Alfred Langtry, DePaul Legal Clinic, Chicago, for Guardian Ad Litem-appellee.

Justice CERDA delivered the opinion of the court:

Petitioner, Jimmie Pleasant, Jr., brought this action on July 5, 1989, to modify provisions of a Judgment of Dissolution of Marriage that had granted respondent, Sandra Pleasant, reasonable visitation with her son, Jimmie Pleasant III (Jimmie), including weekly unsupervised overnight visitation and extended unsupervised visitation during summer vacations and school holiday breaks. On August 20, 1991, after a hearing, the post decree court entered an order restricting Sandra's visitation rights by requiring that visitation be supervised by heterosexual employees of the Illinois Department of Children and Family Services, reducing her visitation to alternate weekends, eliminating overnight visitation, and requiring that Sandra enroll in regular psychotherapy with no apparent goals for such therapy.

On appeal, respondent asserts that (1) the post decree court's finding of serious endangerment is against the manifest weight of the evidence; and (2) the post decree court abused its discretion in denying her two motions for a change of venue. Respondent contends that the court's finding of serious endangerment is against the manifest weight of the evidence because it is improperly based on her being a lesbian. In contrast, petitioner asserts that the ruling was not based on respondent being a lesbian, but on her alleged inappropriate actions in front of Jimmie.

The record indicates that there was no evidence of any inappropriate behavior in Jimmie's presence. The fact that respondent is openly involved in a lesbian relationship is not grounds to restrict respondent's visitation with her son. Thus, we reverse the post decree court's judgment.

Petitioner and respondent were married in Chicago on November 1, 1973. On February 13, 1983, respondent gave birth to Jimmie, who is the couple's only child. On April 26, 1985, the parties were legally separated and respondent kept physical custody of Jimmie. In 1986, respondent began a lesbian relationship with Ann McBreen, who moved into the marital home where she, Jimmie, and respondent each had their own room.

Suspecting that there was a problem with Jimmie's development, respondent took Jimmie to the Chicago College of Osteopathic Medicine for an evaluation. After diagnosing Jimmie's test results as abnormal, Dr. Stephen Sheldon recommended further testing.

Respondent then took Jimmie to the University of Chicago Wyler Children's Hospital Department of Pediatrics. Dr. Tonsgard, a pediatric neurologist, diagnosed Jimmie as having some developmental delay and behavioral problems.

In November 1986, respondent took Jimmie to the University of Chicago Department of Psychiatry. Jimmie was evaluated during 14 days of tests and interviews. On January 16, 1987, the University of Chicago's evaluation diagnosed Jimmie as having a pervasive developmental delay with borderline mental retardation, attention deficit, and psychological disturbance. The evaluation concluded that Jimmie's emotional disturbance interfered with his learning and social development.

Subsequently, respondent placed Jimmie in the Beacon School, which is a private school with a special education program designed specifically to address Jimmie's disability. During the summer of 1987, the parties consulted with a mediator, Dr. Leonore Levit. Dr. Levit suggested a home study and a psychiatric evaluation of both parents.

Dr. Miles Vachula, a child and adolescent psychiatrist, interviewed both parents. In his August 7, 1987, report, Dr. Vachula stated that he found no evidence that either parent had a psychotic thought disorder. He diagnosed petitioner as having adjustment reaction with a depressed mood and respondent as angry, hostile, and having adjustment reaction with mixed emotional features of some anxiety and depression.

Dr. Vachula stated that "the issue of the mother's homosexuality should not interfere with her being considered the custodial parent." Dr. Vachula recommended that Jimmie remain in his mother's custody with liberal visitation with his father. He also suggested that respondent seek psychotherapy to learn how to deal with her anger.

Brenda Sexton, a caseworker with the Cook County Department of Supportive Services, conducted an in-home study of both parents. She recommended a guardian ad litem (GAL) and psychiatric counseling for Jimmie as well as family counseling for all parties.

On March 20, 1988, after a trial during which respondent openly acknowledged that she was a lesbian in a relationship with Ms. McBreen, the trial court judge entered a Judgment of Dissolution of Marriage. Petitioner was awarded sole custody of Jimmie and respondent was awarded reasonable visitation, including weekly overnight visitation. No restrictions were placed on visitation.

On July 5, 1989, petitioner filed an emergency motion for a rule to show cause and for modification of visitation. Subsequently, after it was determined that respondent had not disobeyed the court's visitation orders, petitioner withdrew his petition for the rule to show cause.

When petitioner appeared in court on the emergency petition, respondent had not yet been served and was not present. Nevertheless, the post decree judge allowed petitioner's attorney to address the court. The attorney represented that respondent had abducted Jimmie, had been charged with the abduction, was heavily involved in the gay and lesbian community, and had subjected Jimmie to activities including the gay and lesbian pride parade.

Petitioner then testified that Jimmie told him that he had gone to Wisconsin Dells with respondent and Ms. McBreen, that the three of them stayed in the same motel room, that respondent and Ms. McBreen slept in the same bed, and that respondent and Ms. McBreen hugged and kissed. In addition, petitioner stated that Jimmie told him that he had gone to a parade. After some investigation, petitioner determined that the only parade held during that time was a gay and lesbian pride parade.

Based on the representations and testimony, the post decree judge suspended visitation until the next court date because he was concerned about "this lesbian stuff," which "is not in the best interests of a child."

On the next court date, respondent requested a substitution of judges on the basis that the post decree judge had heard evidence during the July 5, 1989, ex parte hearing. In the post decree judge is not the trial judge. Denying the motion, the judge stated that he had heard the case over a number of years and that respondent's lesbian lifestyle was not in Jimmie's best interests.

On July 14, 1989, the judge held an in camera interview with Jimmie, who was six years old. Many of Jimmie's answers were incoherent, rambling, or contradictory. In response to questions about the trip to Wisconsin Dells, Jimmie said that he slept in a room by himself. When the judge asked where the respondent slept, the following discussion occurred:

"THE MINOR CHILD: In her room.

THE COURT: She had a separate room?

THE MINOR CHILD: Yes.

THE COURT: You had two rooms?

THE MINOR CHILD: Um-hum.

THE COURT: Where did Ann sleep?

THE MINOR CHILD: In her room?

THE COURT: How many rooms did you have?

THE MINOR CHILD: Two rooms and one room.

THE COURT: Two rooms and one room?

THE MINOR CHILD: Yes.

THE COURT: Did you go through--how did you go to the other room. Did you go through the door or have to go outside?

THE MINOR CHILD: Through the door.

THE COURT: Through the door?

THE MINOR CHILD: Um-hum.

THE COURT: You slept in one room?

THE MINOR CHILD: Yes.

THE COURT: And who slept in the other room?

THE MINOR CHILD: My ma.

THE COURT: Who?

THE MINOR CHILD: My mama and Ann.

THE COURT: Your mom and Ann?

THE MINOR CHILD: Yes."

When the judge asked Jimmie about the gay and lesbian pride parade, there was no indication that Jimmie was upset by the parade. In fact, he stated that he did not know what type of parade it was and that the people wore colorful shirts.

Then, the judge spoke extensively with Jimmie about whom his mother kissed. Jimmie stated that she kissed him and Ms. McBreen. When asked if respondent and Ms. McBreen were kissing on the fishing trip, Jimmie said that they were. He also stated that he kissed both respondent and Ms. McBreen.

During the subsequent court hearing, petitioner called respondent as an adverse witness. Respondent, who stated that she is a lesbian, testified that she lived alone in an apartment owned by her brother. Although she and Ms. McBreen were once lovers, they had been only friends since April 1988. When she and Ms. McBreen were lovers, respondent indicated that they would embrace in front of Jimmie, who would ask for a hug from both of them. Respondent stated, however, that Jimmie had never seen her and Ms. McBreen kiss. In addition, respondent testified that Jimmie had seen them in bed together, but never kissing each other in bed.

Respondent explained that on June 17, 1989, she went with Jimmie and Ms. McBreen to a Kankakee State Park campground where she and Jimmie slept in one tent and Ms. McBreen slept in another tent. Respondent denied that she and Ms. McBreen stayed in the same bed together or that they hugged and kissed in front of Jimmie. Respondent stated that she and Ms. McBreen showed no signs of affection toward each other in front of Jimmie while on the trip.

Regarding the June 25, 1989, gay and lesbian...