Fitness of Parent

Fitness of Parent

   Exhibitionism and sexual conduct of child’s mother did not preclude an award of child custody to her where the conduct did not affect the mother’s relationship to the child.  Craig v. Craig
   The way a mother chooses to spend her free time with child is proper factor to be considered in weighing the child’s best interests.  In re Quindry
   Unfitness under the Adoption Act (750 ILCS 50/1 et seq.) is different than unfitness for the purpose of child custody under this Act.  Tranel v. Lutgen
   Fitness of the parent is only one element to be considered in determining what is in a child’s best interest.  Lyons v. Bute
   It is not necessary to find one parent “unfit” to justice an award to the other parent.  In re Milovich
   The fact that the mother is fit is only one factor to be considered by the trial court and the court cannot recognize a presumption in favor of the mother in a contest for custody of children of tender years.  Drake v. Hohimer
   Although ex-wife was shown to have a drinking problem, and that she had been dating other men prior to her divorce, it does not follow that the wife was therefore unfit to have custody of the children.  Kauffman v. Kauffman
   Although allegations of misuse of alcohol and acts of adultery were relevant to the court’s determination of the fitness of a particular parent to the custody of a minor child, trial court’s determination that the mother was a fit and proper parent was not against the manifest weight of the evidence.  Huey v. Huey
   Father was bound by a determination that the mother was a fit and proper person unless he could affirmatively that the mother was a fit and proper person unless he could affirmatively show a material change of circumstances adversely affecting the best interest of the children occurring after the original decree.  Golden v. Braunfeld
   Proof was insufficient to sustain the conclusion that the defendant was an unfit mother where she was remarried, established a home for her children, had a good relationship between herself, her second husband and her children, as shown by an impartial report of the Cook County Department of Public Aid, and her older daughter expressed a preference to remain with her mother.  Laughlin v. Laughlin
   Where it was established that the children’s mother was committed to state hospital from December of 1963 to May, 1965, during which time the father had sole custody of the children; the children were in good health and doing well in school, the father was a fit and proper person to have custody of the children, it was within the discretion and power of the chancellor to award the custody of the children to the father.  Carlson v. Carson
   The evidence established that the father was a fit and proper person to have the care, custody and education of the child.  Landrey v. Landrey
   Where a divorced husband seeking to deprive the mother of custody of a small child upon the ground the mother was no longer a fit and proper person to have such custody, the petition was denied as unjustified and husband was given the right to take the child for weekends, every other week during school, and for two separate periods of two weeks each during the summer.  Handrch v. Handrich
   The burden of proving unfitness is in on the party asserting it; unless such unfitness is established by clear evidence, fitness will be presumed.  Szewcyk v. Szewcyk

Guardian Ad Litem
   A guardian ad litem may make a recommendation as to custody.  In re Wycoff

Guardianship
   A guardianship determination will not be disturbed unless the trial court has clearly abused its discretion or its decision is against the manifest weight of the evidence.  In re Russell

Health of Parents
   Where husband argued that the court did not consider wife’s poor health in awarding her custody, appellate court held that the trial court adequately considered petitioner’s poor health in deciding the custody issue where the court recognized that despite her health problems, wife had been able to adequately care for the children during the 2 ½ years the parties had been separated and respondent testified as to his own server health problems, and in his brief he stated that his health “may not be appreciably better than petitioner’s.”  In re Smith

Homestead

___Effect of Custody
   Where the deceased was living with his recent wife and their child, and a child of the deceased’s previous marriage, the homestead exemption went to the second wife and all of the deceased’s children, jointly, although custody of his children from the previous marriage had been awarded to his second wife.  Walker v. Walker

Homosexual Parent
   A lesbian parent’s arguments of un-constitutional discrimination in a child custody proceeding, based on sexual orientation was without merit because the cohabitation relevant factor to be considered by the court in making a custody determination; contrary to the claimed discrimination, such an approach was sexual orientation neutral, in that any sexual relationship having impact on the child would be examined.  In re Diehl
   Because a parent’s associations were relevant to her ability to care for a child, the parent’s freedom of association was not violated by the trial court’s consideration of her sexual orientation.  In re Diehl
   Where the evidence revealed that mother, a nurse, exhibited gross character defects by actively recruiting a patient who was a minor, to engage in an illicit and criminal sexual relationship and in so doing, showed her propensity to feed her sexual appetite without regard to morals, ethics or law, the decision that father was better able to provide for the child’s mental, moral and emotional needs was correct.  In re Williams
   The trial court was correct in taking into consideration mother’s homosexual relationship in determining original custody.  In re Williams
   Eighteen year old drug abuser, living in the same household with mother, who considered herself to be an authoritative adult with the ability to discipline and correct daughter was properly considered by the court with its determination to award custody of the child to the father.  In re Williams

Illustrative Cases
   Decision to award custody to father was against manifest weight of the evidence where: 1) children expressed a preference to live with father; 2) children had adjusted to living with father over period of the appeal; 3) mother was sole custodian during four years temporary custody order was in effect and two preceding years which were during initial separation; 4) mother was primary custodian during marriage; 5) there was no serious objections to children’s care while in mother’s custody; 6) father had moved to a new city; and 7) father had interfered with mother’s visitation during pending appeal.  In re Hefer
   The trial court considered whether respondent was a good role model for the parties’ four minor male children in light of his failures to work for 10 years and to assist the petitioner in maintaining a livable family environment during that time.  In re Fahy
   Trial court decision that the father could provide a more stable environment for the children was not “manifestly unjust” or against the manifest weight of the evidence.  In re Milovich
   References to the record and to alleged errors were not sufficient to constitute grounds for reversal of custody award.  In re Ford
   For a case discussing factors affecting the award of custody.  See Barbara v. Barbara

Initial Custody Order
   This section is used when the court is required to make an initial custody decision.  In re Gibbons.
   Where there was not a full hearing by the trial court at the time of the original placement of the child but custody was achieved by the stipulation of the parties upon their divorce, the trial court may use initial discretion in deciding what custody provisions provide for the children’s best interest.  De Franco v. De Franco

Integration of the Child
   The trial court did not err in considering a child’s integration into his father’s home without his mother’s consent, where the child’s integration would have occurred except for the mother’s actions, and the integration was not considered separately but as a part of the home environment.  Thompson v. Thompson

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