holding that a mother's cohabitation with her boyfriend with no plans to marry was an affront to morality, injurious to the moral well-being and development of her children, and sufficient grounds for changing custody
How later courts described this case
- holding that a mother's cohabitation with her boyfriend with no plans to marry was an affront to morality, injurious to the moral well-being and development of her children, and sufficient grounds for changing custody
Written by the judges who cited it.
The opinion
MR. JUSTICE MORAN, with whom MR. CHIEF JUSTICE GOLDENHERSH joins, dissenting:
I join in the dissent of the chief justice, but also dissent separately. My primary disagreement with the majority lies with its countenancing a change of custody based solely on a conclusive presumption that harm to the Jarrett children stemmed from Jacqueline’s living arrangements. The majority purports to follow the Illinois Marriage and Dissolution of Marriage Act. Yet, under that act, only on the basis of fact can there be a finding that a change in circumstances has occurred and that modification of the prior custody judgment is necessary to serve the best interest of the children. (Ill. Rev. Stat. 1977, ch. 40, par. 610(b).) The court is not to consider conduct of a custodian if that conduct does not affect his relationship to the child. (Ill. Rev. Stat. 1977, ch. 40, par. 602(b).) In this case, not one scintilla of actual or statistical evidence of harm or danger to the children has been presented. To the contrary, all of the evidence of record, as related by the majority, indicates that under Jacqueline’s custodianship the children’s welfare and needs were met. Also, the trial court expressly declined to find Jacqueline unfit. Nevertheless, the majority’s finding of a violation of the seldom-enforced fornication statute effectively foreclosed any further consideration of the custody issue. Instead of focusing solely on the best interest of the children — the “guiding star” (Nye v. Nye (1952), 411 Ill. 408, 415 ) — the majority has utilized child custody as a vehicle to punish Jacqueline for her “misconduct.” Such selective enforcement of a statute is inappropriate and, especially in the child-custody context, unfortunate.
The majority decision also is at odds with the principle of Stanley v. Illinois (1972), 405 U.S. 645 , 31 L. Ed. 2d 551 , 92 S. Ct. 1208 . The constitutional infirmity of the statutory presumption in Stanley casts doubt on the validity of the judicially created conclusive presumption in this case. After Stanley, an unwed father may not be deprived of his illegitimate children without a prior hearing to determine his actual fitness. Similarly, Jacqueline should not be deprived of the children in the absence of evidence that a change is necessary to serve the best interest of the children. A hearing at which custody is determined on the basis of the conclusive presumption sanctioned by the majority amounts to no hearing at all.