Recent Custody Decisions

RECENT CUSTODY DECISIONS

GENERAL

            There is a strong and compelling presumption in favor of the trial court’s determination of custody because the trial court is in a better position to evaluate the credibility, temperaments, personalities and capabilities of both parents through the several days of the proceedings. Cooper v. Cooper, 146 Ill. App. 3d 943, 100 Ill. Dec. 627, 497 N.E.2d 805 (5 Dist. 1986).

            A custody determination does not require a showing that one parent is a “better” or “worse” person than the other; it is the children’s best interest that is paramount. In re Milovich, 105 Ill. App.3d 596, 61 Ill. Dec. 456, 434 N.E.2d 811 (1 Dist. 1982).

            The law presumes that it is in the best interest of a child to be raised by his natural parent. Lloyd v. Lloyd, 92 Ill. App. 3d 124, 47 Ill. Dec. 792, 415 N.E.2d 1105 (1 Dist. 1980).

It is not necessary that the natural parent be found unfit or be found to have legally forfeited his right to custody if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent. Lloyd v. Lloyd, 92 Ill. App. 3d 124, 47 Ill. Dec. 792, 415 N.E.2d 1105 (1 Dist. 1980).

            In determining the best interest of the child, the court must consider the particular facts and circumstances of each case. Lloyd v. Lloyd, 92 Ill. App. 3d 124, 47 Ill. Dec. 792, 415 N.E.2d 1105 (1 Dist. 1980); In re Krause, 111 Ill. App. 3d 604, 67 Ill. Dec. 408, 444 N.E.2d 644 (1 Dist. 1982).

            The commands of this section and 750 ILCS 5/610 to consider only whether the child’s environment endangers his physical, mental, moral and emotional health and to disregard any conduct of the custodian that does not affect his relationship with the child reemphasize the principle that the focus of custody determinations must be the welfare of the child. Jarrett v. Jarrett, 78 Ill. 2d 337, 36 Ill. Dec. 1, 400 N.E.2d 421 (1979), cert. denied, 449 U.S. 927, 101 S. Ct. 329, 66 L. Ed. 2d 155 (1980).

            Although the best interest of the child is the standard against which all actions must be measured in all cases in an effort to achieve a situation which is beneficial to the children, a trial court cannot avoid the possible consequences of an order by making all orders temporary “experiments” to see which set of circumstances will result in the best living conditions for the children. Carroll v. Carroll, 64 Ill. App. 3d 925, 21 Ill. Dec. 713, 382 N.E.2d 7 (1 Dist. 1978).

            Regardless of the nature of the proceedings, the rights of the parents must be subservient to the well-being and interest of the children. Hinton v. Searles, 53 Ill. App. 3d 433, 11 Ill. Dec. 329, 368 N.E.2d 937 (5 Dist. 1977).

            In proceedings affecting the custody of the child, the primary consideration is the present and prospective welfare of the child. Each case must be determined according to its own circumstances and the question rests largely in the sound discretion of the trial court. Look v. Look, 21 Ill. App. 3d 454, 315 N.E.2d 623 (3 Dist. 1974).

            The best interest of the child is the standard; it is not necessary that the natural parent be found unfit, or be found to have legally forfeited his rights to custody, if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent. People ex. rel. Edwards v. Livingston, 42 Ill. 2d 201, 247 N.E.2d 417 (1969).

            Where both principals to a divorce proceeding are fit persons, they have equal right to custody of their minor children; the paramount consideration in settling the issue of child custody is the welfare and best interests of the children themselves, without any purpose of penalizing the parent upon whom the blame for the dissolution of the marital union may be fixed. Kline v. Kline, 57 Ill. App. 2d 244,205 N.E.2d 775 (3 Dist. 1965).
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In re Custody of T.W., a minor (no. 5-06-0019)

Custody was awarded to grandparents; presumption that custody be awarded to natural parent was overcome by a showing of the best interest of the child.

Facts:
Maternal grandparents of child born out-of-wedlock filed a petition under the Marriage and Dissolution of Marriage Act for a change of custody, after mother voluntarily surrendered physical custody of the child to the grandparents.

Findings:
Trial court’s determination of the best interest of the minor child in a custody dispute will not be reversed unless it is against the manifest weight of the evidence or unless the court clearly abuses its discretion.
The court did not improperly ignore the presumption that a natural parent’s right to custody is superior to a claim by a third person.  Additionally, the trial court found that petitioner have shown good cause to overcome the presumption that custody for the father would be in the child’s best interest.

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In re Marriage of Katharine L. Diaz (No. 2-05-1061)

Wife filed a petition for dissolution of marriage seeking sole custody of the minor child.  The Circuit Court, Lake County, Judge Ortiz, granted husband’s motion to dismiss for lack of subject matter jurisdiction for the child custody portion of the petition.

Findings:
Mother and child had significant connections with the state and thus, in the absence of a home state the state had subject matter jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act to make an initial child custody determination.  The child was born in the state, mother was married and resided in the state, returned to the state each time that she and her husband separated, relied on her mother, a state resident, to assist with the care and support of child and received medical aid and ford supplements from state.

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