# In Re Marriage of Gambla and Woodson > Appellate Court of Illinois · July 31, 2006 · 367 Ill. App. 3d 441 URL: https://www.frixlaw.com/law-library/cases/9724504 ## Case - **Full name:** In Re MARRIAGE OF CHRISTOPHER M. GAMBLA, Petitioner-Appellant, and KIMBERLY K. WOODSON, Respondent-Appellee - **Court:** Appellate Court of Illinois - **Decided:** July 31, 2006 - **Citations:** 367 Ill. App. 3d 441; 304 Ill. Dec. 770; 853 N.E.2d 847; 2006 Ill. App. LEXIS 667 - **Precedential status:** Published - **Opinion:** Concurrence by Byrne - **Judges:** Gilleran Johnson - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9724504 ## How later opinions describe it (automated extraction) - stating that under Frye, “the proponent of expert testimony predicated upon a scientific theory must establish that the theory has gained general acceptance in the expert’s scientific field” (emphasis added) ## Opinion text JUSTICE BYRNE, specially concurring: I agree with the conclusion reached in the opinion of the court; however, my road to that end is different to such a degree that I feel compelled to express why I believe that the trial court’s judgment should be affirmed. In reaching its conclusion, this court accepts Dr. Thomas’s conclusion that the mother should have custody. I believe that the court’s acceptance of Dr. Thomas’s opinion is improper. Dr. Thomas was one of four expert witnesses certified by the trial court. Of these four witnesses who were certified to give opinions in the case, one, Dr. Hynan, was the court’s neutral witness; the other three expert witnesses, Drs. Alexander, Hatcher, and Thomas, were controlled experts chosen by the mother. Although the trial court found Dr. Thomas qualified to render her opinion concerning the testing methods employed as applied to African-Americans, it found her not qualified to offer an opinion concerning custody. Drs. Hynan and Hatcher performed the tests on each of the parties and concluded that the father was the preferred custodian. Their opinions were in large part based on the results of these tests. Dr. Thomas, as well as Dr. Alexander, criticized the testing methods employed by Drs. Hynan and Hatcher and questioned the accuracy of the results. Both Drs. Thomas and Alexander were critical of the testing process because they stated that the tests, as given and interpreted, were probably not accurate as applied to African-Americans, who require analyses different from those used by Drs. Hynan and Hatcher. Further, the bulk of Dr. Thomas’s testimony concerned the subject of race. While the trial court found her not qualified to render an opinion concerning custody, she nevertheless came to the conclusion that the mother should have custody because the child is biracial and a female. Because her conclusion as to custody was not admissible at trial, I believe that the majority had no right to accept it in affirming the trial court’s judgment. I note also that, aside from Dr. Thomas’s opinion regarding custody, there was no competent expert witness opinion that the mother should have the child. Dr. Alexander never rendered an opinion as to who should have custody, although he was qualified to express an opinion, and Drs. Hynan and Hatcher favored the father. If I thought that the trial court based its conclusion as to custody in any manner as espoused by Dr. Thomas, I would not support that result. As the dissent states, it has long been the law that custody based solely on race is an impermissible exercise of the court’s discretion. See Fountaine v. Fountaine, 9 Ill. App. 2d 482, 486 (1956). I agree with the dissent that, had the court used race as the sole consideration in its analysis, it would have erred. However, I do not think race was the sole factor here. This court cites In re Glenville, 139 Ill. 2d 242 (1990), for the proposition that the trial court is free to determine the weight to be given to expert testimony. I believe that the trial court gave little weight to the expert conclusions of Drs. Hynan and Hatcher as to who should have custody, based on Drs. Thomas’s and Alexander’s criticism of their testing methods and analyses. The court then analyzed the myriad of nonexpert testimony offered by both parties consistent with the requirements of the statute (see 750 ILCS 5/602(a) (West 2004)), and found that a preponderance of the evidence favored the mother. This was a long and complicated trial with many witnesses. The trial judge’s memorandum opinion expressed the difficulty he had in arriving at a decision in a case as close as this one, where there were so many positives for each parent and, aside from certain eccentricities, no real negatives. While I support the result reached by this court, I do so for my own reasons. I hope that the parties will be able to work together to raise their daughter, both contributing their special heritages and personalities to the best of their abilities. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9724504. Public record. Not legal advice.