Petition — Jacqueline Jarrett v. Walter Jarrett

79-1735

Gupreme Court, U.

FILED

No. MAY 1. 1980

ic!

t "MICHAEL RODAK, JR., C

Jn the

Supreme Court of the Gnited States

JACQUELINE JARRETT,

Plaintiff-Petitioner,

vs.

WALTER JARRETT,

Defendant-Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

MicHaEL Harry Minton

Wi. J. Harte

111 W. Washington Street

Chicago, Illinois 60602

312-956-6180

Attorneys for Petitioner

Of Counsel

Gerarp A. FaccHrni

KennetH J. SoPHIE

The Scheffer Press, Inc.—(312) 263-6850

SUBJECT INDEX

PAGE

Citations to Onimiotes TRG xccsscssneccccssniessconctscisdinain 2

FUERTE. sinsiesccmsinrnsineolehneacuciaaamdmadinamsaaaian 2

Constitutional and Statutory Provisions «0.0... 2

Questions Presented For Review .......cccccccccscscescssesseeees 3

Smmmmeman Tow Commitee Week oss eccessccscccsconssrsseierssenanececsnsoues 3

OUI OE TO SIRE sorceress 6

Tee Tes Teees VOR cna. 12

The Equal Protection Violation ...........cccsccsssssecseeseseeeees 13

Argument

A. The Due Process Violation... 16

B. The Equal Protection Violation ...............00... 27

COUR naiseninsisncissnvnccuniniaeniunioummmmamaaaaan 36

TaBLeE Or AUTHORITIES

FepEerAL CAsEs

Bell v. Burson, 402 U.S. 535 (1971) nn. cecseeesseees 18

Cleveland Board of Education v. LaFleur, 414 U.S.

CER CEIFE). cence 16, 23

Loving v. Virginia, 388 U.S. 1 (1967) oo... scenes 26

Quilloin v. Walcott, 434 U.S. 246 (1978) ose 16

Stanley v. Illinois, 405 U.S. 645 (1972) 3,16, 18, 20, 21, 22

Turner v. Department of Employment Security, 423

TB. GE (ER TB) .ceorrnereccspnincenesngacens ssisdeonpininniaingeian ada 23

PAGE

United States Dept. of Agriculture v. Murray, 413

I sia cacriersctcaneicasnitacpeplaloendeetiorndsseaninbasidsistadiiosiit 23

Vlandis v. Klein, 412 U.S. 441 (1973) wn eesees 16, 23

Dandridge v. Williams, 397 U.S. 471 (1970) .........00. 29

State Cases

Abbott v. Abbott, 40 Ill. App. 3d 348, 352 N.E. 2d

ict esichcacicabensadasepisetoneniepnsigcidhinanasnuomalnthionse 35

Arden v. Arden, 25 fll. App. 2d 181, 166 N.E. 2d

I lars sine henhsncrroessioecnsennessbsnsnaneniaicrnisiiesisaciin 35

Collins v. Collins, 120 Ill. App. 2d 125, 256 N.E. 2d

ATI tint ic ca habicanirs bb nihisicaseaanpsonenicaanbanccaaniaaon 35

Eggemeyer v. Eggemeyer, 86 Ill. App. 2d 224, 229

nis copnabniciiiadogpapscdasndosedadoainouinns 34

Garland v. Garland, 19 Til. App. 3d 951, 312 N.E.

il ict es sanniensitgpitenthgniaessnbebalusccaitil 35

In re: Burrell, 58 Ohio St. 2d 37, 388 N.E. 2d 38

EM nc siacicssphenaadisiniietnnenebibscebidiuedaineate 23

In re: Harne, 33 Tl. Dee. 110, N.E. 2d (1979)... 35

In re: Marriage of Walter, 07 Or. App. 721, 557

REE Pe ann TE 24

Jacobs v. Jacobs, 25 Ill. App. 3d 175, 232 N.E. 2d

a iseretsalicnich saseeshonvesinniinsntcnighsiinianbeoiien 35

Maupin v. Maupin, 339 Ill. App. 484, 90 N.E. 2d

as sala saseidpcconabvssnesnencbtihondnstnntabdancsnneioen 35

King v. Vancil, 34 Tll. App. 3d §31, 341 N.E. 2d

Liisi da shsinivaeiindeidicbniibieiasevaubniclinibnnidbaniind 35

Nye v. Nye, 411 Tll. 408, 105 N.E. 2d 300 (1952) ......... 34

i Ne Wc es Oe GO CDDTS) cccccssctcssssccssecssescorecs 23

Wade v. Wade, 345 Ill. App. 170, 102 N.E. 2d 356... 35

lii

PAGE

Constitution oF THz Unitep States

BU TE aocovsicsceckcencssscdasenaccectvsnsccsarcccsoveses 16

STATUTES:

Tl. Rev. Stat. Ch. 40: |

ON i a 28

III TRIES | siniesioscacisalSasenn ccdipbatbosissnembundtemananeie 14, 25, 28, 29

BIE SIU. siviiuipstadersceuiniadatanancanialimuaiininaais 14, 25, 28, 29

MISCELLANEOUS

U.S. Bureau of Census, Current Population Report,

No. 23, “Marital Status and Living Arrange-

A TE TPES cehinisowssciidicisinitiaiceatemataigendinens 27

Jonas Free, Doris and Foster, Henry, Divorce in the

Fifty States, an Overview as of August 1, 1979.

(ABA, Family Law Section) ...........ccssccseeseseseeees 4

IN THE

SUPREME COURT OF THE UNITED STATES

No.

JACQUELINE JARRETT,

Plaintiff -Petitioner,

vs.

WALTER JARRETT,

Defendant-Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

The petitioner, Jacqueline Jarrett, respectfully prays

that a Writ of Certiorari issue to review the sharply di-

vided judgment and opinion of the Supreme Court of

Tilinois entered in this proceeding on December 20, 1979,

which deprived her of custody of her children solely be-

cause she elected to reside with an unmarried adult male.

All other evidence demonstrated (1) that Jacqueline was

a kind, affectionate mother and that she had not neglected

her children in any way as a result of the relationship;

and (2) no fault was found or disclosed as to the ap-

pearance, health and stability of the children or the home.

(App. 27a)

OPINION BELOW

The original Opinion of the Supreme Court of Illinois

is set forth in Appendix A to this Petition. The Opinion

deol es

was modified on February 1, 1980, upon denial of rehear-

ing in the manner set forth herein in Appendix B. An

additional written dissent was subsequently filed on Feb-

ruary 12, 1980, and is set forth herein in Appendix C.

The Opinion of the Appellate Court of Illinois is set

forth in Appendix D. The full text of the Supreme Court’s

Opinion is reported at 400 N.E.2d 421. The full text of

the Appellate Court Opinion is set forth at 64 Ill. App.

3d 932, 382 N.E.2d 12.

JURISDICTION

The Opinion and Judgment of the Supreme Court of

Illinois was entered December 20, 1979. A timely Petition

for Rehearing was filed and was denied with modification

of the Opinion on February 1, 1980. A supplemental

written dissent of Justice Moran of the Court was

delivered on February 12, 1980. Jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3). The State of Illinois

affords no further procedure to remedy the violation

of petitioner’s constitutionally guaranteed rights.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional provisions involved are the Equal

Protection clause and the Due Process clause of the Four-

teenth Amendment. Also involved is the constitutional

propriety of the statutory provisions of the Illinois Mar-

riage and Dissolution of Marriage Act as applied by the

Illinois Supreme Court to this cause. Inu.Rev.Srar. 1977,

ch. 40, pars. 602, and 610. The text of these statutory

provisions in pertinent part is set forth in Appendix E.

satis

QUESTIONS PRESENTED FOR REVIEW

1. Does the decision and opinion of the Supreme

Court of Illinois which establishes a conclusive presump-

tion of the Court’s subjective perception of possible future

“moral harm” to children solely because of their resi-

dence with unmarried adults, a presumption which is then

used to terminate the custodial rights of petitioner, vio-

late her constitutional right to Due Process and Equal

Protection of the Laws under the Fourteenth Amend-

ment as stated by this Court in Stanley v. Illinois, 405

U.S. 645 (1972)?

2. Does the construction and application of the pro-

visions of the Illinois Marriage and Dissolution of Mar-

riage Act by the Supreme Court of Illinois so as to de-

prive petitioner of her children solely because of her

residence with an unmarried adult infringe upon peti-

tioners’ constitutional rights to Due Process and Equal

Protection of the Laws under the Fourteenth Amend-

ment? |

REASONS FOR GRANTING THE WRIT

The Supreme Court of Illinois has once again upheld the

use of a conclusive presumption in a custody matter to

terminate the custodial rights of petitioner to her three

children. The Jarrett decision of the [Illinois Supreme

Court declines to apply the principle and ruling of

this Court in Stanley v. Illinois, 405 U.S. 645 (1972).

This Court there held that the employment of an irre-

butable presumption upon the fundamental interests of

parents and their children in custody matters is an un-

constitutional violation of the rights of such parents to

Due Process and Equal Protection under the Fourteenth

pat, oe

Amendment. By resorting to the use of an irrebuttable

presumption in denying Jacqueline Jarrett of the right

to custody of her children, the Supreme Court of Illinois

changed the focus in a child custody proceeding from

the traditional concern for the welfare and best interests

of the child to a focus on the conduct of a custodial parent

without regard to its effect on the child. As with Stanley,

the Jarrett presumption irrationally and unjustly di-

rectly affects and has a chilling affect on not only the

constitutional rights of Jacqueline Jarrett, but also the

constitutional rights of over one million unmarried par-

ents similarly situated now and hereafter in the State

of Illinois and other states in the United States.

The precedent-setting effect of the Jarrett decision

can be accurately forecast since the statutory framework

in the, [linois Marriage and Dissolution of Marriage

Act, Ill. Rev. Stat. ch. 40, has its foundation in the

Uniform Marriage and Divorce Act, as promulgated by

the National Conference of Commissioners on Uniform

State Laws in 1970, as amended, and subsequently ap-

proved by the American Bar Association. The guide-

lines established by the Uniform Marriage and Divorce

Act are shared throughout most of the United States

either by statutory application or judicial interpreta-

tion. Divorce in 50 States, an Overview as of August 1,

1979, by Dr. Doris Jonas Freed and Professor Henry

H. Foster, Family Law Section of the American Bar

Association. The application of the presumption created

by the Jarrett decision in child custody proceedings in

the courts of our sister states imports the significance

and episodic consequences of permitting such a precedent

to stand. A status, defined as a single parent living with

a person of the opposite sex, which creates an environ-

ment “endangering seriously the physical, mental, moral

iss lees

or emotional health of a child” without proof of harm

and absent evidence of detrimental effect to the child, con-

stitutes, a judicially established conclusive presumption.

This presumption persists despite evidence to the con-

trary, and concludes that harm to a child, will occur at

some time in the future.

To establish the existence of such a status as the basis

for a transfer of the custody of a child from a custodial

parent to a non-custodial parent effects the greater pro-

portion of our population. According to the United States

Census Bureau in 1978, there were 12 million children

under the age of 18 in single parent homes. The Census

parents to a non-custodial parent affects the greater pro-

Bureau established that nearly one-half of all children

born in the 1970’s will spend a meaningful part of their

lives before age 18 in a single parent home. If this child’s

custodial parent lives with a person of the opposite sex,

irrespective of the actual effect of such an environment

on the child, the harm is presumed to occur, if not now,

then in the future, and that child will be taken from one

parent and awarded to the other. With an additional one

million children per year involved in a dissolution of

their families, the consequences of the Jarrett decision

are ever widening. If a parent of any of these children

elects to cohabit with a person of the opposite sex for any

reason, be it social, physical, emotional, psychological, eco-

nomic, moral, or just personal, that fact established in a

custody modification proceeding triggers a change of

custody without regard to the effect of that chosen status

on the child, without investigation into the best interest

of the child. The consequences of the Jarrett decision on

these millions of single parents and children have been

recognized by the news media, prompting extensive multi-

media coverage nationwide in newspapers, magazines,

a ee

radio and television commentary and debate. The judicial

presumption created by the Supreme Court of Illinois

in the Jarrett decision is being discussed and debated in

courtrooms, family law seminars and laws schools across

the country.

STATEMENT OF THE CASE

Petitioner, Jacqueline Jarrett, was divorced from re-

spondent, Walter Jarrett, in the Cireuit Court of Cook

County, Illinois, on December 6, 1976. Based upon a

finding of fact that Jacqueline Jarrett was a fit and

proper person to have the sole care, custody, control and

education of the parties’ three daughters, Kathleen,

Deborah and Susan, now ages fifteen, thirteen and ten,

respectively. Jacqueline was awarded custody of the

children. The respondent was granted reasonable visita-

tion, exercising that visitation in his apartment from

Saturday evenings until Sunday at 5:00 p.m.

Since December, 1976, the respondent was aware of a

relationship between Jacqueline Jarrett and Wayne Ham-

mon. In April, 1977, petitioner related to respondent that

Wayne Hammon would be moving in with her and the

children. (R. 7). The respondent said that he would see

“if there wasn’t something he could do about that.” (R. 8).

A Custody Modification Petition against Jacqueline

Jarrett was filed the following week stating that her

relationship with Wayne Hammon was contrary to Walter

Jarrett’s personal beliefs and that he did not wish his

children to be raised in an atmosphere he considered

immoral. (R. 12). The respondent conceded at trial, how-

ever, that each weekend when he called for the children,

they always appeared clean, healthy, well-dressed and

well-nourished. (R. 14) The respondent further admitted

at trial that he had not discussed his personal beliefs with

a om

his children, except once with his oldest daughter,

Kathleen, and he said that she expressed no objections

to Wayne Hammon’s presence in the home, except oc-

casionally he would yell at them when they made noise

or something of that nature. (R. 15, 16).

Wayne Hammon testified that the children call him

“Wayne” and that he was acquainted with the neighbors

and had attended school functions with the children. (R.

21, 22). Mr. Hammon helps the children with their home-

work; and they go to shows, play games and enjoy other

activities as a family unit. (R. 26); He and the children

had fun together and got along. He brings them little

gifts from time to time and gives them their allowances

from his own money. (R. 37, 38). Jacqueline testified

that the children are very fond of Wayne and show him

affection.

The children have lived in the family home all of their

lives. (R. 23). Jacqueline testified that her children did

not want to move from their home. (R. 30). Jacqueline

stated that the love she and Wayne feel for each

other very definitely manifests itself in the children and

that she feels an obligation and commitment toward

Wayne Hammon. She does not want to get married now

because it is too soon after the divorce and she does not

believe that a marriage license makes a relationship be-

tween two people. Wayne Hammon testified that he con-

sidered marriage to Jacqueline a possibility, but not

right at this time.

Wayne Hammon and Jacqueline Jarrett have discussed

their lifestyle with the children from time to time in

terms of different people having different beliefs and

that some people feel it is wrong for two people to live

RE a

together without a marriage license, but that it was not

their personal feelings; and that their father felt one

way about it while they felt another. They disagreed with

this moral judgment and testified that what mattered to

them was the love they felt for each other. (R. 19).

Jacqueline does not want her children to be duplicates

of herself and wants her children to make their own de-

cisions when they become adults. She wants them to

have their own values as long as they are comfortable

with themselves and do not hurt anyone. (R. 34, 37).

At the close of the testimony and upon this evidence,

the trial court ordered Jacqueline Jarrett stripped of

custody of the children, proclaiming that it was “neces-

sary for their moral and spiritual well-being and de-

velopment.”

On September 13, 1978, the Appellate Court of Illinois,

First District, reversed the trial court decision and its

finding that a change of custody was necessary for the

children’s moral and spiritual well-being and development.

The Appellate Court’s review of the record held such

a conclusion to be unsupported by the evidence and that

the trial court’s broad discretion was exercised in this

matter contrary to the manifest weight of the evidence.

The Appellate Court’s analysis of the Record, which has

never been challenged, concluded that Jacqueline

“is a kind, affectionate mother and that she had not

neglected her children in any way as a result of the

relationship. No fault was found or disclosed as to

the appearance, health and stability of the children

or the home. The schooling and religious training of

the girls was being attended to. . . It is evident that

Jacqueline Jarrett, Wayne Hammon and the three

children function as a family unit. . . There was no

noticeable disruption of the children’s routine, nor

were they subject to the vagaries of an unstable re-

lationship . . . shuffled back and forth. . . There was

no evidence of any feeling of guilt or fears aroused

in the children. From the evidence in the record be-

fore us they are mature adults and their relationship

is not relevant here unless it is shown as having a

negative effect on the children. In the absence of

any such negative effects, we decline to indulge in

speculation. . . Similarily we see no evidence to war-

rant the conclusion that change in custody was neces-

sary to serve the best interests of the children.”

Jarrett v. Jarrett, 64 Til.App.3d 932. 937, 382 N.F.

2d 12 (1978).

The court further stated in its opinion: “We do find

it an abuse of discretion to infer, without any evidence in

the record, that Jacqueline Jarrett’s conduct is detri-

mental to the children.”

The Supreme Court of Tllinois, on December 20, 1979,

reversed the Appellate Court because “it declined to con-

sider potertial future harmful effects . . . on the children.”

(App. 3a). The creation of a presumption to accomplish

this consideration of “potential future harmful effects”

became the means to accomplish the Court’s stated

purpose:

“To wait until later years to determine whether

Jacqueline Jarrett had inculeated her moral values

in the children would be to await a demonstration

that the very harm which the statute seeks to avoid

had occurred.” (App. 9a).

The presumptive language set forth by the five man

majority of the Supreme Court of T[llinois was further

defended by the following rationale:

=

“Measures to safeguard the moral well-being of

children whose lives have already been disrupted by

the divorce of their parents cannot have been in-

tended to be delayed until there are tangible mani-

festations of damage to their character. . . . While

our comments are focused upon the moral hazards,

we are not convinced that open co-habitation does

not also affect the mental and emotional health of

the children. ... (App. 9a).

“Tt is difficult to predict what psychological effects

or problems may later develop from their efforts to

overcome the disparity between their conflict with

society and their mother’s conduct. ... If the Jar-

rett children remained in that situation, they might

well be compelled to try to explain Hammon’s

presence to their friends and perhaps to endure their

taunts and jibes. (App. 9a, 10a). Further, since the

evidence indicated that Jacqueline had not terminated

the troublesome relationship and would probably con-

tinue tt in the future, the trial court properly trans-

ferred custody to Walter Jarrett... .” (App. 10a).

(emphasis added)

This rationale as stated by the Supreme Court of Tlli-

nois is in contrast to the final paragraph of the opinion

rendered by the Appellate Court of Illinois:

“In the absence of any evidence of such negative

effects, we decline to indulge in speculation as to

what effects might possibly ‘raise their ugly heads’

at some future time. Gehn v. Gehn (1977), 51 Il.

App.3d 946, 949, 367 N.E.2d 508.

“There was neither a specific finding of Jacqueline’s

unfitness nor evidence which would support that con-

clusion. Similarily we see no evidence to warrant

the conclusion that a change of custody was neces-

sary to serve the best interests of the children. We

do find it to be an abuse of discretion for the trial

court to impose its own standard in this regard and

=

infer, without any evidence in the record, that

Jacqueline’s conduct in living with a man to whom

she was not married was detrimental to the welfare

of the children and in and of itself sufficient to dis-

qualify her as the custodian of the children.” Accord,

In re Marriage of Moore (1975), 33 Colo. App. 129,

531 P. 2d 995. (App. 27a, 28a).

Chief Justice Goldenhersh and Justice Moran dissented

from the decision of the Supreme Court of Tllinois.

Justice Goldenhersh, upon examination of the majority

opinion, failed to find any issue other than the non-

marital status of Jacqueline Jarrett:

“The effect of this decision is that the plaintiff’s

cohabitation with Hammon per se was _ sufficient

grounds for changing the custody order previously

entered. (App. lla).

“As a legal matter simply stated, the majority has

held that on the basis of her presumptive guilt of

fornication, a Class B Misdemeanor, plaintiff. al-

though not declared to be an unfit mother, has for-

feited the right to have the custody of her children.”

(App. 12a).

On modification and denial of rehearing, Justice

Moran filed an additional written dissent. disapproving

of the majority’s change of custody and condemning the

Supreme Court of Tlinois reliance on the use of a con-

clusive presumption:

“. . . based solely on a conclusive presumption that

harm to the Jarrett children stemmed from Jac-

queline’s living arrangement. . . . In this case, not

one scintilla of actual or statistical evidence of harm

or danger to the children has heen presented. To the

contrary, all of the evidence of record as related bv

the majority indicates that under Jacqueline’s cus-

—_— re

_todianship, 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 consider-

ation of the custody isse. Instead of focusing solely

on the best interests of the children—the “guiding

star” (Nye v. Nye, 411 Til. 408, 415 (1952))—the ma-

jority has utilized child custody as a vehicle to punish

Jacqueline for her “misconduct.” Such selective en-

forcement of the statute is inappropriate and

especially in child custody context, unfortunate... .

The constitutional infirmity of the statutory presump-

tion in Stanley v. Illinois, 405 U.S. 645 (1972), casts

doubt on the validity of the judicially created ‘pre-

sumption’ in this case... . A hearing at which cus-

tody is determined on the basis of conclusive pre-

sumption sanctioned by the majority amounts to no

hearing at all.” (App. 20a).

1. The Due Process Violation

Based on an irrebuttable presumption of future harm,

rather than present harm, the Supreme Court of Illinois

held that Jacqueline Jarrett’s unmarried relationship to

Wayne Hammon on a resident basis is sufficient grounds

in and of itself to terminate the custody rights to her three

children, This decision was reached regardless of the

express finding of the Circuit, Appellate and Supreme

Courts in Illinois that Jacqueline Jarrett is a good and

fit mother, and regardless of the uncontradicted and un-

disputed evidence that the children are well cared for,

healthy and happy in the home environment of their

mother and Wayne Hammon.

—

The Supreme Court of Illinois bases its decision in this

parent-child matter on the fact that Jacqueline Jarrett

and Wayne Hammon’s three-year relationship lacks formal

status in the State of Illinois and that her status with

Wayne Hammon is contrary to prevailing public policy

toward the institution of marriage in the State of Illinois.

As a result, the Supreme Court of Illinois has held as

a matter of irrebutable presumption, notwithstanding

“the absence of any tangible evidence of contemporaneous

adverse effect” upon the children, that such status re-

lationships of unmarried adults affect detrimentally the

“future” well-being of the children. It is mot that

Jacqueline Jarrett’s relationship with Wayne Hammon is

}eid harmful but that the effect of her unmarried status

in that relationship is dangerous by example; that at

some future time, if at all, the children may also deciine

to adopt the policy-preferred status of marriage as defined

by the Supreme Court of Illinois.

The Supreme Court of Illinois has thus used the children

and the child custody forum to punish Jacqueline Jarrett

by taking away her children, in the name of protecting

what it perceives to be the best interests of the institution

of marriage.

2. The Equal Protection Violation

The Supreme Court of Illinois has used the Jarrett

children in this custody matter to single out for punish-

ment a certain class of parental custodians, without any

showing in reason or evidence that the unmarried status

of Jacqueline Jarrett ts Wayne Hammon is harmful to

the children. The Jarrett decision makes this isolated factor

controlling in her case whereas toward other custodial

parents, particularly those who fornicate on a non-

resident basis, no other single factor would, in itself be

determinative of the child’s best interests.

The Illinois Marriage and Dissolution of Marriage

Act, which controls this cause, specifically provides in

section 602 that “the court shall not consider conduct of

a present or proposed custodian that does not affect his

relationship with the child.” This section has been ap-

plied differently to the Jarrett class of custodian. In de-

termining custody ‘‘in accordance with the best interest

of the child,” section 610 mandates that “the court shall

retain the [present custodian] unless . .. the child’s

present environment endangers seriously his physical,

mental, moral or emotional health... .” Contrary to this

mandate of the Illinois Legislature, the Court has held

that although tangible evidence of present harm to the

children in this case is lacking, a showing of present

harm is not required here. The mere fact of this parti-

cular kind of custodial relationship is, in itself, held proof

of harm to the children in this class of cases. Although

any custodial status, behavior or belief may raise the

question of detrimental effect on the children, the status

of relationship and conduct itself is not simultaneously

and irrebuttably its own ‘‘proof’’ of serious detrimental

effect. All other custodial conduct over which custodial

rights have been challenged have required, since Stanley

v. Illinois and until the instant case, a positive showing

and rational connection between the custodial status and

the particular effect of that status on the parent-child re-

lationship.

=

An evidentiary nexus between Jacqueline Jarrrett’s

relationship and harm or “potential future harm”

to the children has not been found or required for this

class of unmarried custodial parents according to the Su-

preme Court of Illinois. In the absence of any evidence

to support a finding of harm, the Court was forced to,

and in fact did rely upon a conclusive presumption. This

presumption not only affects Jacqueline Jarrett, but all

those parents similarly situated. For this class of parents,

and only this class, it is unnecessary to produce evidence

to show that the environment in which the children are

being raised is threatening to the child’s physical, men-

tal, moral and emotional health. The Jarrett Court has

failed to establish any nexus between this differential treat-

ment of Jacqueline’s class and the best interests of the

child. It is this differential treatment which petitioner

here contends fails to meet the rational relationship test

of the Equal Protection Clause of the Fourteenth Amend-

ment.

The ucvision aud opinion of the Supreme Court of Lllinois

established an irrebutable presumption by terminating

the custodial rights of Jaqueline Jarett and thus violated

her constitutional rights to Due Process and Equal Pro-

tection of the Laws under the 14th Amendment.

A. The Due Process Violation

It is well-established that a parent’s relationship with

his or her children is one of the liberties to which due

process must be accorded. Quillomm v. Walcott, 434 U.S.

246, 255 (1978). It is equally well-established that

irrebuttable presumptions have long been disfavored un-

der the Due Process Clause of the Fourteenth Amend-

ment. Vlandis v. Kline, 412 U.S. 441 (1973). Accordingly,

in those situations where a conclusive presumptiun has

been employed to impair or affect child-rearing and

parental rights, this Court has never hesitated to strike

down the particular statute or presumption involved.

Cleveland Board of Education v. LaFleur, 414 U.S. 632

(1974); Stanley v. Illinois, 405 U.S. 645 (1972).

In Jarrett v. Jarrett, the Supreme Court of Illinois has

made a radical departure from the constitutional safe-

guards which were so vigorously protected in Stanley

and LaFleur. The Jarrett decision patently creates an

irrebuttable and conclusive presumption of future harm

to the children caused by the unmarried status itself.

Although the majority of the Court attempted to

rationalize its ruling by referring to the “manifest weight”

—

rule, even a cursory review of the Court’s decision clearly

demonstrates the fact that the Jarrett case creates a con-

clusive presumption which is contrary to and in direct

violation of Jacqueline’s constitutional rights heretofore

recognized and safeguarded by this Court. Justice Moran,

in his dissenting opinion cut through the facade when

he stated that the majority’s ruling is “based on a con-

clusive presumption that harm to the Jarrett children

stemmed from Jacqueline’s living arrangement. In this

case not one scintilla of actual or statistical evidence of

harm or danger to the children has been presented.”

(App. 20a; emphasis added).

In its original slip opinion, the majority expressly

stated that its decision was founded upon such a pre-

sumption: “. . . the open and continuing co-habitation of

the custodial parent with a member of the opposite sex

justified the change in custody im the absence of any

tangible evidence of contemporaneous adverse affect on

the children.” (App. 5a; emphasis added). It was only

after Jacqueline presented her petition for rehearing, in

which she vehemently urged her constitutional rights,

that the majority amended the opinion to include a

reference to the “manifest weight” of the evidence.

The fact cannot be ignored that the uncontroverted

and undisputed evidence clearly demonstrates that

Jacqueline is a kind, affectionate mother who takes ex-

cellent care of her children. Not one shred of evidence

was produced to show that the Jarrett children were un-

happy, unstable, neglected, upset or confused. Nor was

it shown that the children have been, or are likely to be,

subject to scorn or scandal in the community. No evi-

dence was produced to show that the children have or

—

might adopt their mother’s outlook on marriage. In

fact, as noted by Justice Moran, the findings of record

point much more convincingly to the contrary.

It is apparent, therefore, that in order to reach the

decision that it did, the Supreme Court of Illinois was re-

quired to rely upon predictions, guess, speculation, con-

jecture and presumptions of what “might” or “could”

happen in the future without any evidence that such

events were even “likely” to occur.

The fact that a hearing was held in the trial court

does not save the present holding or the trial court’s

ruling from attack under the Due Process Clause, par-

ticularly where the hearing was not a “meaningful one”

and the result was foreclosed from the start. Bell v.

Burson, 402 U.S. 535 (1971). As Justice Moran noted in

his dissent, such a constitutional infirmity “is at odds

with the principle of Stanley v. Illinois, 405 U.S. 645

(1972). . . . A hearing at which custody is determined

on the basis of the conclusive presumption sanctioned by

the majority amounts to no hearing at all.” 400 N.E.

2d at 427. Due to the ultimate fact at issue heing decided

a priori by presumtion, no meaningful hearing was held.

This amounts to a taking away of Jacqueline’s present

right to continued custody, based solely upon an adjudica-

tion of a future moral harm. Such a presumption must

not be permitted as a substitute for proof.

As stated by Justice Moran, “. . . [A]ll of the evi-

dence of record, as related by the majority, indicates

that under Jacqueline’s custodianship the children’s wel-

fare and needs were met.” (App. 20a). (emphasis

added). Joining with Justice Moran, Chief Justice Golden-

hersh stated, “This record shows clearly that the children

ens

were healthy, well-adjusted, and well cared for, and it

should be noted that both the circuit and appellate courts

made no finding that plaintiff was an unfit mother.”

(App. lla). The “manifest weight” of the evi-

dence referred to by the majority in its amended

opinion was, in actuality, a presumption. A presumption

of “potential future harm,” irrebuttable by the evidence

produced at the trial court of Jacqueline’s fitness,

stability, love and proper care. The “potential future

harm” in this case is nothing other than the court’s

speculation sua sponte that the children may someday

adopt the life-style of their mother. (App. 17a). In-

deed, the majority opinion is substantially devoted to

consideration of Jacqueline’s relationship with Wayne

Hammon and what the Court itself perceives to be

the effect of that relationship on the institution of mar-

riage. However, it was not until page seven of the eight-

page majority opinion, that the court turned to the

“manifest weight of the evidence” when referring to the

detrimental effect of Jacqueline’s non-marital status. As

shown by the following excerpt. the “manifest we*~?t”

of the evidence was in actuality the Court’s own _ -e-

diction of what “might” happen:

“Tt is difficult to predict what psychological effects

or problems may later develop from the childrens’

efforts to overcome the disparity between their con-

cepts of propriety and their mother’s conduct. .. .

If the Jarrett children remain, they might well be

compelled to expiain Hammon’s presence to their

friends and perhaps to endure their taunts and jibes.”

(App. 10a; emphasis added).

What “may”, “perhaps”, “might”, or “could” happen at

some future time, without any evidence of a nexus be-

tween Jacqueline’s non-marital status and the effect of

=

said relationship on her children, is nothing more than a

speculative, conclusive presumption.

The Supreme Court of Illinois, resort to and reliance

upon this type of a presumption is precisely the type of

reasoning condemned in Stanley v. Illinois, 405 U.S. 645

(1972). In Stanley, the unwed father of three children

was denied custody after the death of the natural mother

with whom he had lived intermittently for eighteen years.

The statute involved in Stanley was held to be uncon-

stitutional since it contained an irrebuttable presump-

tion that unmarried fathers are unfit to raiise their chil-

dren. The inherent flaw in the statute was clearly ex-

plained by this Court in the following manner:

“Procedure by presumption is always cheaper and

easier than individualized determination, but where,

as here, procedure forecloses the determinative issues

of competence and care when it explicitly disdains

present realities in deference to past formalities, it

needlessly runs the risk of running roughshod over

the important interests of both parents and child.

It therefore cannot stand.” Stanley v. Illinois, 405

U.S. at 656, 657 (1972).

Certainly it would be easier, cheaper and more con-

venient to presume that such a non-marital status would

or could have an adverse effect on the children without

requiring the parties to present any evidence in support

of that conclusion. But as this Court noted in Stanley,

the important interests of both parents and children are

protected under the Due Process Clause and it is un-

acceptable for the Court to rely on a presumption of harm

‘*solely because it is more convenient to presume than to

prove.’’ 405 U.S, at 658,

a vn

The petitioner here contends that what the Illinois

Court has referred to as a “troublesome relationship,”

(App. 10a) as it affects the children, is capable of reason-

able proof based on evidence. It is not necessary, or desir-

able, for the sake of the children to rely on speculative

presumptions of what may happen at some indefinite time

in the future. Especially, disconcerting is the Illinois

court’s assumption that petitioner’s non-marital status—in

fact, a living arrangement—“probably affects the children’s

mental and emotional health adversely as well.’’ (App.

9a). Certainly, we need not resort to speculative as-

sumptions to find legally admissible and convincing evi-

dence of the mental and emotional health of the children.

No change of custody should take place based upon an

adjudication of what the Court perceives to be a ‘‘fu-

ture moral harm,” which has not occurred and which

may, in fact, never occur. Evidence of stability and com-

mitment, love and support, can be found, as they have

been found in this case, Doubtless, evidence to the con-

trary is equally susceptible of proof. Let such evidence

and not presumptions be the standard of proof when

children are to be taken by a custody modification.

The use of a presumption in this instance to determine

the best interests and welfare of the children is contrary

to this Court’s holding in Stanley:

‘*. . . where the very nature of due process negates

any concept of inflexible procedures universally ap-

picable to any imaginable situation. What procedures

Due Process may require under any set of circum-

stances must begin with the determination of the

precise nature of the governmental function involved,

as well as the private interest that has been affected.’’

405 U.S. 645 at 650.

—_—.

‘‘Nor has the law refused to recognize those family

relationships unlegitimized by marriage ceremonies

. . . . [FJamilial bonds in such cases were often as

warm, enduring and important as those arising within

a more formally organized family unit. 405 U.S. at

651, 652.

‘*Tt may be as the state imsists, that most (fathers

of illegitimate children) are unsuitable and neglect-

ful parents, It may also be that Stanley is such a

parent, and that his children should be placed in

other hands. But all unmarried fathers (of illegiti-

mate children) are not in this category. 405 U.S. at

654 ... (The statute) insists on presuming rather

than proving Stanley’s unfitness, solely because it is

more convenient to presume than to prove. Under

the Due Process clause, the advantage is insuffi-

cient.” 405 U.S. at 658.

It was the basic premise of the State of Illinois in

Stanley that a status defined as marriage signified the

parents’ willingness to work together in caring for the

child by entering into a marriage contract; and that a

non-marital status, on the other hand, was presumed to

signify a parent’s unwillingness to care for children.

The state’s argument in Stanley has a familiar ring to

respondent’s argument that Jacqueline Jarrett, by her

unmarried status, created an environment which pre-

sumptively may harm her children in the future, regard-

less of the absence of present harm.

This presumption is in fact irrebuttable in this par-

ticular case since the evidence, uneontroverted and un-

disputed either by respondent or the Supreme Court of

Illinois, shows that Jacqueline Jarrett is a kind, affec-

tion mother who takes good care of the children. (400

N.E. 2d at 426, 427). Thus, the rationale of the Jarrett

decision falls squarely within the Due Process prohibi-

tions outlined in Vlandis v. Klem, 425 U.S. 411 (1973);

United States Department of Agriculture v. Murray, 413

a

U.S. 508 (1973); Cleveland Board of Education v. La-

Fleur, 414 U.S. 632 (1974); Turner v. Department c;

~Employment Security, 423 U.S. 44 (1975); and Stanley

v. Illinois, 405 U.S. 645 (1972).

It is also significant to note that the opinion of the

Supreme Court of Illinois in Jarrett is directly contrary

to and indistinguishable from a line of state court deci-

sions in which it was held that the resolution of child

custody questions must be based upon evidence rather

than presumptions. Jurisdictions considering this issne

have likewise refused to resort to the use of an irrebut-

table presumption in order to establish a nexus between the

parents’ living arrangement and harm to the children.

In S. v. J., 267 N.Y.S.2d 405 (1975), it was held that co-

habitation between an unmarried male and female without

the benefit of marriage “is not per se evil or one of tmmor-

ality.” The court explained that the resolution of custody

questions “should preferably be placed upon more (con-

ductive) considerations determinative of the best welfare

of the child. Change of residence and surroundings with-

out circumstances of dire necessity and immense peril

should be avoided.”

The same conclusion was reached by the Ohio Supreme

Court in Jn re: Burrell, 58 Ohio St. 2d 37, 388 N.E. 2d 38

(1979), which involved a situation where the mother

was living with a man not her husband. In refusing to

uphold a change of custody based upon the mother’s

living arrangement, the Court held:

“The conduct of the parent is relevant solely inso-

far as that parent’s conduct forms part of the en-

vironment of the child. As part of the child’s environ-

ment, such conduct is only significant if it can be

demonstrated to have an adverse impact upon the

child. Here such is not the case.” In re: Burrell 58

Ohio St. 2d 37, 388 N.E. 2d 38, (Ohio Sup. Ct., 1979).

—

In re: Marriage of Walter, 27 Or. App. 721, concerned

a similar question. The Oregon court refused to resort

to the use of a presumption, explaining:

“While cohabitation may in many circumstances be

injurious to the welfare of the child, we cannot say

that in every circumstance conceivable or otherwise

that cohabitation in any form would have such an

effect. Examining the record, there is no evidence

which indicates that the condition placed upon the

award of custody is necessary to protect the chil-

dren. The court should make its decision in light of

the actual rather than a speculative situation.”

S. v. J., Burrell and Walter are all consistent with and

follow this Court’s decision in Stanley v. Illinois. Jarrett

v. Jarrett, however, in explicitly rejecting the application

of Stanley, has ignored and seriously threatened the con-

stitutional safeguards which this Court, and the courts

of our sister states, have so carefully strived to protect.

Due Process requires the elimination of conclusive pre-

sumptions when deciding important issues such as the

best interests and welfare of the children. Prior to

Jarrett, it was universally accepted that the burden is,

and always has been, on the movant seeking a change

of custody to show that the behavior complained of ad-

versely affects the child, and affects the child so seriously

that removal from the dangerous environment is in the

child’s best interests. As noted by Chief Justice

Goldenhersh :

“... in order to modify or amend an award of cus-

tody, the evidence must show that the parent to whom

custody of the children was originally awarded is

unfit to retain custody, or that a change of condi-

— po

tions make a change of custody in their best in-

terests. This record fails to show either.” (App. 12a).

Justice Moran wholeheartedly agreed with this analysis,

stating that “. . . 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 neces-

sary to serve the best interest of the children.” (ILL.Rev.

Strat. ch. 40, sec. 610(b) (1977)). “. . . Jaequeline should

not be deprived of the children in the absence of evidence

that a change is necessary to serve the best interests of

the child.” (App. 20a).

The Supreme Court of Illinois in Jarrett has

prohibited unmarried parents from living together by

depriving fit and proper parents the custody of their

children without requiring evidence of harm to the

children. Instead, by means of a conclusive presumption,

or per se rule, based upon an adjudication of future moral

harm not presently in existence, a change of custody is

presumed to be in the best interests of the children. A

presumption of this nature focuses upon the conduct of

the parent, rather than the best interests of the child.

As Justice Moran explained, “[t]his court is not to con-

sider conduct of a custodian if that conduct does not affect

[the] relationship to the child.” (Ill. Rev. Stat. ch. 40, see.

602(b) (1977)) “. . . Instead of focusing solely on the

best interest of the children . .. the majority has utilized

child custody as a vehicle to punish Jacqueline for her

“misconduct.” (App. 20a).

This action is not to determine the best interests of

the institution of marriage, or whether petitioner, all by

herself, has endangered the institution of marriage.

—

This cause arose as a modification of custody pro-

ceeding and is to determine whether a compelling show-

ing has been made that Jacqueline’s children have been

harmed or harm is so imminent that they must be taken

from her. To require petitioner to marry, if she is to

keep custody of her natural children, is tantamount to

marriage by edict or judicial decree. There is no public

policy or compelling state interest in the institution of

marriage which outweighs the fundamental right of a

person to marry or not to marry. Loving v. Virginia, 388

U.S. 1 (1967).

To decide important rights of parent and child on the

basis of an adjudication of a future moral harm is not

only patently unjust and unnecessary but is a clear

violation of the Due Process clause of the Fourteenth

Amendment. No state interest in the institution of mar-

riage is so compelling as to constitute a basis for

adjudication of such rights, particularly where there is

not one scintilla of evidence showing that the environ-

ment is “dangerous” or that the children may suffer harm

“at some future time” and likewise forego formal mar-

riage.

As Chief Justice Goldenhersh stated:

“. .. it should be noted that both the circuit and

appellate courts made no finding that plaintiff was

an unfit mother. The majority, too, makes no such

finding and based its decision on a nebulous concept

of injury to the children’s ‘moral well-being and

development.’ (78 Tll.2d at 347, 36 Ill.Dee. at 4, 400

N.E.2d at 424.) I question that any competent

sociologist would attribute the increase to ‘live in’

unmarried couples to parental example. (App. 11a).

Blanket subjective presumptions simply will not work

in the context of increasingly unique and complex cir-

=

cumstances present in custody determinations. Every

child’s interests in such matters deserves more careful

scrutiny than blanket presumptions will allow.

B. The Equal Protection Violation

The overall impact of the Jarrett decision is potentially

overwhelming since the Supreme Court of Illinois has ef-

fectively established a unique classification of unmarried

parents who reside with members of the opposite sex,

and has arbitrarily discriminated against Jacqueline Jar-

rett and all those parents similarly siituated by denying

them the equal protection of the laws. In its personalized,

subjective judgment seeking to uphold and_ strengthen

the institution of formal marriage, but without any objec-

tive evidence and study, the Court has plunged in ‘‘run-

ning roughshod”’ (Stanley v. Illinois, 405 U.S. 645 at 656)

over the important rights of 1.1 million similarly situated

parents and their children. U.S. Bureau of Census, Cur-

rent Population Report, p. 20, No. 23, “Marital Status and

Living Arrangements’’ March 1977. Although the Illinois

Supreme Court dismissed the Census statistics as unper-

suasive, the purpose in citing these figures was to demon-

strate a material and existing social phenomenon in which

the equal protection rights of more and more people are

being threatened everyday. According to the [Illinois

Court’s majority holding, respondent, Walter Jarrett, and

all other ex-custodians similarly situated, need only show

that the present custodian is living with a member of the

opposite sex in order to warrant a transfer of custody.

With such a rule, the likelihood of abuse is immense.

Moreover, such a classification totally disregards the

principles formulated by the Illinois Legislature in the re-

cently enacted Marriage and Dissolution of Marriage

Act, which provides in pertinent part as follows;

“oe

Section 510: Modification and Termination of Provi-

sions for Maintenance, Support and Property Disposi-

tion.

(b) The obligation to pay future maintenance is ter-

minated upon the death of either party, or the remar-

riage of the party receiving maintenance, or if the

party receiving maintenance cohabits with another

person on a resident, continuing conjugal basis. .. .

Section 602: Best Interests of the Child.

(a) The Court shall determine custody in ac-

cordance with the best interests of the child. The

court shall consider all relevant factors, including

1) the wishes of the child’s parent or parents as to

his custody; 2) the wishes of the child as to his

custodian; 3) the interaction and interrelationship of

the child with his parents or parent, his siblings and

any other person who may significantly affect the

child’s best interests; 4) the child’s adjustment to

his home, school and community: and 5) the mental

and physical health of all individuals involved.

(b) The Court shall not consider conduct of a

present or proposed custodian that does not affect his

relationship with the child... .

Section 610. Modification.

(b) The Court shall not modify a prior custody

judgment unless it finds on the basis of the facts that

have arisen since the prior judgment or have heen

unknown to the Court at the time of entry of the

original judgment that a change has occurred in

circumstances of the child or his custodian and that

a modification is necessary to serve the best in-

terests of the child. In applying these standards the

Court shall retain the custodian appointed pursuant

to the prior judgment unless . . . (3) the child’s

present environment endangers seriously his physical,

mental, moral or emotional health, and the harm

likely to be caused by a change in environment is

outweighed by the benefits to him... .”

— 29 —

Without justification in law or fact, the Illinois court

has singled out a sub-class of parents whose status, per

se, is a controlling justification for termination ‘of their

parental rights. In other circumstances, the existence of

such a relationship or conduct, would not and could not

be controlling. It is this differential treatment which

fails to meet the rational relationship test of the Equal

Protection clause of the Fourteenth Amendment. Dand-

ridge v. Williams, 397 U.S. 471 (1970). There is simply

no nexus between the uniquely disabling class character-

istics established by the Illinois Court’s opinion, and all

other possible types of custodial conduct. Furthermore,

no nexus exists between this class of unmarried parents

and the presumed harmful effect on their children. For

this, and only this notorious and dangerous sub-class of

custodian, the Supreme Court of Illinois “will not wait”

as it must in all other situations to reach a decision that

is based upon “facts that have arisen”, ILu.Rev.Srat.,

ch. 40, par. 610(a) (1977), or evidence that the “present

environment endangers seriously” the child. Inu.Rev.Srar.

ch. 40, par. 610(b) (1977) (emphasis added). The Illinc’s

Court has decided that it will not wait for actual

harm where this, and only this, particular type of cus-

todial relationship exists regardless of the other facts

showing parental fitness, love, care and the well-being

of the children.

The finding by the Supreme Court of Illinois that Jac-

queline Jarrett violated a dormant statute relating to for-

nication places Jacqueline and all those parents similarly

situated in a unique and disabling class which is not en-

titled to the constitutional safeguards that other parents

enjoy. Under the Criminal Code of Illinois, prosecution

and conviction of an offense, albeit a Class B misdemea-

—_ we

nor, is within the sole jurisdiction of the People of the

State of Illinois, and the Supreme Court of the State is

without jurisdiction to decide ex parte that Jacqueline or

anyone else similarly situated is in fact guilty of a crime.

Chief Justice Goldenhersh defined the issue:

‘*As a legal matter, simply stated, the majority has

held that on the basis of her presumptive guilt of for-

nication, a Class B misdemeanor, plaintiff, although

not declared to be an unfit mother, has forfeited the

right to have the custody of her children.” (App. 12a).

If it were the manifest will of the People of the State

of Illinois that Jacqueline should be charged, tried and

found guilty under Inu.Rev.Srar., ch. 38, see. 11-8 (1977),

then the penalty would not exceed a $200.00 fine or 6

months imprisonment. The forfeiture of the right to

custody of her children is not a penalty for violation of

this statute. Such a punishment is not set by the legis-

lature, and, as applied to Jacqueline Jarrett, is ex post

facto in nature, and penal in result, being used to punish

her status as a single parent living with a person of the

opposite sex. Moreover, Jacqueline takes exception to

the application of the Criminal Code of 1961 as the con-

trolling basis of custody modification under the Illinois

Marriage and Dissolution of Marriage Act of 1977.

Justice Moran took issue with the majority’s reliance

on this criminal statute in determination of child custody:

“... [T]he majority’s finding of a violation of the seldom-

enforced fornication statute effectively foreclosed any fur-

ther consideration of the custody issue.” (App. 20a) As the

dissenting opinions in Jarrett capably demonstrate, the

NE une

effect of such a determination is to punish violators of

Chapter 38, Section 11-8, with the loss of their children,

even “in the absence of tangible evidence of contemporane-

ous adverse effect on the children,” and even though the

custodian is not otherwise declared to be unfit. Any con-

ceivable notion of equal protection of law, no matter how

basic or narrowly defined, militates against such a rule. To

define such conduct as criminal and, therefore, contrary

to public policy constitutes two a prior presumptions:

(1) that all people occupying this status are immoral;

and (2) that this immorality is harmful to the children,

if not presently, then in the future. These presumptions

are, in effect, contrary to the best interests of the chil-

dren. By presuming harm without proof, and precluding

evidence of positive effect on the children, the presump-

tions created as irrebuttable. These presumptions are

applied to this one class of custodial parents, and to the

exclusion of all other custodians.

In arriving at its decision the Supreme Court of Illinois

stated, “(i]t is in our judgment, clear that her conduct

offends prevailing public policy.” (App. 7a) Jacqueline

respectfully submits that it is the judgment of the People

of the State of Illinois alone that may determine whether

or not Jacqueline’s conduct offends prevailing public

policy. The Supreme Court of Illinois effectively found

Jacqueline guilty of criminal conduct. This “criminality”

was held offensive to “prevailing public policy.” As

pointed out by Chief Justice Goldenhersh:

The fragility of its conclusion concerning “prevailing

public policy’ is demonstrated by the majority’s re-

liance on cases decided by this court in 1852 (Searls

v. People, 13 Ill. 597) and 1902 (Lyman v. People,

198 Ill. 544, 64 N.E. 974), and an appellate court

— 32—

decision (People v. Potter (1943), 319 Ill. App. 409,

49 N.E. 2d 307) which rather than ‘prevailing public

policy,’ more clearly indicates the prejudice extant

in that period against interracial sexual relations.

(App. lla)

Public policy, as it relates to child custody proceedings,

is ascertainable by reference to the Illinois Marriage and

Dissolution of Marriage Act where the focus of the legis-

lature has been to regulate, rather than condemn such a

status. Reference to Sections 510(b), 610 and 602(b) re-

futes such a status as presumptively illegal or immoral,

and reveals an arbitrary and invidiously discriminating

application in the Jarrett decision.

Such relationships are referred to in Section 510(b),

supra, relative to modification of maintenance but not in

Section 610, supra, relative to modification of custody.

The absence of such a reference in Section 610 is ex-

plained by reference to Section 602(b), supra: ‘‘(b)

The court shall not consider conduct of a present or

proposed custodian that does not affect his relationship

to the child.’’ The inclusion of custodial conduct as a

relevant factor in Section 510(b) regarding maintenance,

and the exclusion of custodial conduct in Section 610(b)

by the substitution of 602(b) regarding custody, is a

clear statement of legislative intent. The conduct of a

custodial parent is not to be given presumptive or nega-

tive application in a custody proceeding; yet the Supreme

Court of Illinois, in determining custody modifications in-

volving this particular class of individuals—namelvy single

parents living with a person of the opposite gender—

defines such a status and the conduct therein as the basis

for applying an irrebuttable presumption that the rela-

tionship or status of the parent presumably and con-

clusively ‘‘endangers seriously the physical, mental, moral

or emotional health’’ of the child—if not now, then in

the future.

— om

As a direct result of the suspect construction and selec-

tive application of these statutory custodial provisions by

the Supreme Court of Illinois, the defined members of this

sub-class of unmarried parents are arbitrarily discrim-

inated against by the taking of their children. This loss

of their children is accomplished by an irrebutable and

conclusive presumption that such a relationship ‘‘endan-

gers seriously the physical, mental, moral or emotional

health of their children’’ and ‘‘the harm likely to be caused

by a change in environment is outweighed by the benefits’’

to their children. This judicially created presumption

operates in direct contradiction to the criteria and stan-

dards set forth in Sections 602 and 610 to determine the

‘‘best interest’’ of the child. This presumption ignores

the statutory mandate is Section 602(b), fails to conduct

an evidentiary hearing regarding the five ‘‘relevant fac-

tors” in Section 602(a), and decides without proof of

harm or evidence of ‘‘relevant factors’? the best in-

terests of the child, contrary to Sections 602(a) and

610(b). This presumption rears its ugly head in defiance

of these statutory mandates only when an unmarried

parent residing with a person of the opposite sex is

faced with the loss of a child in a eustody modification

proceeding initiated by a non-custodial former spouse.

In any other custody proceeding involving any other liti-

gant, the statutory mandates of Section 602 and 610 are

applied, and custody is awarded based on evidence of

the ‘‘best interest of the child’’, rather than presumption.

The Appellate Court in Jarrett was correct in its deci-

sion to reject rigid classifications and to follow instead

the consistent, yet flexible line of Illinois case authority

as harmonized into and with the mandate of the Illinois

Legislature in the New Marriage and Dissolution of

"on

Marriage Act, Section 602 and 610. These sections set

forth criteria to be considered and standards to be ap-

piled in resolving modification of custody disputes. At

the same time, the Legislature established a built-in safe-

guard to protect the constitutional rights of the litigants.

In modification proceedings the “moral” health of the chil-

dren is merely one factor among several to be considered

in deciding whether a change of custody is in the best in-

terests of the child. Under no circumstances was it in-

tended to be the only, or the controlling, factor. However,

for those parents who fall within the Jarrett class, and

only those parents, no nexus between the parents non-

marital status and harm to the children need be evidenced.

The Appellate Court correctly focused on the children and

on any reasonable inferences of negative effects on them

as the proper basis for the modification proceeding. The

custodial purent’s conduct or lifestyle may well be an in-

tegral part of the children’s environment. However, the

issue is not only whether the parent’s conduct and beliefs

affect the child (Section 602), but whether the party seek-

ing modification can show that the effects are negative,

and not just perhaps or possibly so, but substantially and

immediately so, such that the disadvantage of a rupture

of the whole familiar environment of the child is out-

weighed by the advantages in a change in custody. (Sec-

tion 610). Such a showing was clearly not made in this

case.

A brief review of the applicable Illinois case law clear-

ly demonstrates that in all matters concerning the custody

of children, the paramount issue is the child’s welfare.

The fact of changed conditions in itself is not sufficient

to warrant modification. Nye v. Nye, 411 Ill. 408, 416, 105

N.E.2d 300 (1952) ; Eggemeyer v. Eggemeyer, 86 Ill. App.

po ee

2d 224, 231, 229 N.E. 2d 144 (1967); Jacobs v. Jacobs, 25

Ill. App. 3d 175, 178, 323 N.E. 2d 21 (1974); Arden v.

Arden, 25 Ill. App. 2d 181, 186, 166 N.E. 2d 111 (1960) ;

Garland v. Garland, 19 Ill. App. 3d 951, 954, 312 N.E. 2d

811 (1974). In determining whether there had been changed

conditions, the Court must keep in view primarily the

welfare of the child. The custody of the child is not

awarded for the purpose of gratifying feelings of either

parent or with any idea of punishing or rewarding either

parent. Maupin v. Maupin, 339 Tl. App. 484, 489, 90 N.E.

2d 234 (1950); Wade v. Wade, 345 Ill. App. 170, 180, 102

N.E. 2d 356. Every presumption is indulged in favor of

the validity of the original judgment and if its provisions

are to be changed, the burden of proof is on the moving

party to show why a change should be made. Jacobs 25

Ill App.38d at 170; Eggemeyer 86 Ill. App.2d at 230;

Abbott v. Abbott, 40 Ill. App. 3d 348, 350, 352 N.E.

2d 404 (1976). Since the children and the parents are

entitled to a certain degree of finality and conclusive-

ness when an order of custody is entered Collins v.

Collins, 120 Ill. App. 2d 125, 128, 256 N.E. 2d 108 (1970),

persons seeking a change must positively demonstrate

that the change is necessary for the welfare of the \

children. King v. Vancil, 34 Ill. App. 3d 831, 834, 341

N.E. 2d 65 (1975). The guiding start of all custody

cases is the best interests and welfare of the child. Nye v.

Nye, 411 Ill. 408, 416, 105 N.E. 2d 300 (1952).

Permissive presumptions operate to shift the burden to

the party against whom the presumption is applied, and

such has never been the law in Illinois custody determina-

tion. The burden is always on the movant seeking the

change. Indeed, if any presumption exists in Illinois

custody law, it exists in favor of the original custodian,

In re: Harne, 33 Ill, Dec. 110 (1979). Jacqueline is asking

=

no more, but certainly no less, than what has been ac-

corded prior custody litigants. A presumption on any

fact did not operate against them. It should not operate

against her either, in violation of the Equal Protection

clause of the Fourteenth Amendment.

CONCLUSION

For the reasons set out above, petitioner Jacqueline

Jarrett respectfully submits that this petition for writ of

certiorari should be granted.

Respectfully submitted,

MicHarL Harry Minton

Wi.M J. Harte

111 W. Washington Street

Chicago, Illinois 60602

312-956-6180

Attorneys for Petitioner

Of Counsel

Gerarp A. FaccH ini

KenneETH J. SopuHis, JR.

—

APPENDIX A

Docket No. 51431—Agenda 23—September 1979.

JACQUELINE JARRETT, Appellee, v. WALTER JAR-

RETT, Appellant.

MR. JUSTICE UNDERWOOD delivered the opinion

of the court:

On December 6, 1976, Jacqueline Jarrett received a

divorce from Walter Jarrett in the cireuit court of Cook

County on grounds of extreme and repeated mental cruel-

ty. The divorce decree, by agreement, also awarded Jac-

queline custody of the three Jarrett children subject to

the father’s right of visitation at reasonable times. Seven

months later, alleging changed conditions, Walter peti-

tioned the circuit court to modify the divorce decree and

award him custody of the children. The cireuit court

granted his petition subject to the mother’s right of visi-

tation at reasonable times, but the appellate court re-

versed (64 Ill. App. 3d 932), and we granted leave to

appeal.

During their marriage, Walter and Jacqueline had three

daughters, who, at the time of the divorce, were 12, 10

and 7 years old. In addition to custody of the children,

the divorce decree also awarded Jacqueline the use of the

family home, and child support; Walter received visitation

rights at all reasonable times and usual'y had the children

from Saturday evening to Sunday evening. In April 1977,

five months after the divorce, Jacqueline informed Walter

that she planned to have her boyfriend, Wayne Hammon,

move into the family home with her. Walter protested, but

Hammon moved in on May 1, 1977. Jacqueline and Ham-

mon thereafter cohabited in the Jarrett home but did

not marry.

The children, who were not ‘‘overly enthused’’ when

they first learned that Hammon would move into the

=

family home with them, asked Jacqueline if she intended

to marry Hammon, but Jacqueline responded that she did

not know. At the modification hearing Jacqueline testified

that she did not want to remarry because it was too soon

after her divorce; because she did not believe that a

marriage license makes a relationship; and because the

divorce decree required her to sell the family home within

six months after remarriage. She did not want to sell the

house because the children did not want to move and she

could not afford to do so. Jacqueline explained to the

children that some people thought it was wrong for an

unmarried man and woman to live together but she

thought that what mattered was that they loved each

other. Jacqueline testified that she told some neighbors

that Hammon would move in with her but that she had

not received any adverse comments. Jacqueline further

testified that the children seemed to develop an affec-

tionate relationship with Hammon, who played with them.

helped them with their homework, and verbally disciplined

them. Both Jacqueline and Hammon testified at the

hearing that they did not at that time have any plans to

marry. In oral argument before this court Jacqueline’s

counsel conceded that she and Hammon were still living

together unmarried.

Walter Jarrett testified that he thought Jacqueline’s

living arrangements created a moral environment which

was not a proper one in which to raise three young girls.

He also testified that the children were always clean,

healthy, well dressed and well nourished when he picked

them up, and that when he talked with his oldest daughter,

Kathleen, she did not object to Jacqueline’s iiving ar-

rangement.

The circuit court found that it was ‘‘necessary for the

moral and spiritual well-being and development”’ of the

children that Walter receive custody. In reversing, the

appellate court reasoned that the record did not reveal any

negative effects on the children caused by Jacqueline’s

cohabitation with Hammon, and that the circuit court

—

had not found Jacqueline unfit. It declined to consider

potential future harmful effects of the cohabitation on

the children. 64 Ill. App. 3d 932, 937.

Both parties to this litigation have relied on sections

602 and 610 of the new Illinois Marriage and Dissolution

of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 602,

610), which provide:

‘“*Sec. 602. Best interest of child.

(a) The court shall determine custody in accor-

dance with the best interest of the child. The court

shall consider all relevant factors including:

(1) the wishes of the child’s parent or par-

ents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the

child with his parent or parents, his siblings and

any other person who may significantly affect

the child’s best interest;

(4) the child’s adjustment to his home, school

and community; and

(5) the mental and physical health of all in-

dividuals involved.

(b) The court shall not consider conduct of a

present or proposed custodian that does not affect

his relationship to the child.”

“Sec. 610. Modification.

(a) No motion to modify a custody judgment may

be made earlier than 2 years after its date, unless the

court permits it to be made on the basis of affidavits

that there is reason to believe the child’s present en-

vironment may endanger seriously his physical, men-

tal, moral or emotional health.

(b) The court shall not modify a prior custody

judgment unless it finds, upon the basis of facts that

have arisen since the prior judgment or that were

unknown to the court at the time of entry of the said

—

judgment, that a change has occurred in the circum-

stances of the child or his custedian and that the

modification is necessary to serve the best interest

of the child. In applying these standards the court

shall retain the custodian appointed pursuant to the

prior judgment unless:

* * **

(3) the child’s present environment endangers

seriously his physical, mental, moral or emotional

health and the harm likely to be caused by a

change of environment is outweighed by its ad-

vantages to him.

(c) eae)

We note initially, however, that this appeal from the

custody modification order was taken on August 11, 1977,

two months before the effective date of the new act, and

that the new act expressly provides that prior law shall

govern such an appeal (Ill. Rev. Stat. 1977, ch. 40, par.

801(d)). While the sections of the new act governing

modification of custody orders require explicit findings

(see In re Custody of Harne (1979), 77 Ill. 2d 414), we

believe those sections in substance codify the prior deci-

sional law, and that our decision in this appeal is not

affected by the applicability or nonapplicability of the

new act.

The standards applicable to petitions for modification

of custody appearing in section 610(b) are substantially

those to which Illinois courts have long adhered. In Nye

v. Nye (1952), 411 Til. 408, 416, this court said that a

divorce decree ‘‘is res judicata as to the facts which existed

at the time it was entered’’ and that ‘‘[nlew conditions

must have arisen to warrant the court changing its prior

custody determination.’’ Moreover, the guiding principle

in custody adjudications is the best interests of the child

(411 Ill. 408, 415) and the change in conditions must ad-

versely affect the best interests of the child. (411 Tl. 408,

416). The prior statute also directed the attention of the

—

court to the interests of the child in custody adjudications.

(Sections 13 and 18 of the Divorce Act (Ill. Rev. Stat.

1975, ch. 40, pars. 14, 19), repealed by the Illinois Mar-

riage and Dissolution of Marriage Act (Ill. Rev. Stat.

1977, ch. 40, pars. 101 to 802).) Although prior Illinois

decisions did not explicitly articulate the new act’s com-

mand that no change be made in custody unless the harm

inherent in any change in custody is outweighed by the

advantages to the child of the new environment, they did

recognize that continuity in the child’s environment is in

itself important. (Bergan v. Bergan (1976), 42 Ill. App.

3d 740, 743; Holloway v. Holloway (1973), 10 Ill. App.

3d 662, 665; Collings v. Collings (1970), 120 Ill. App. 2d

125, 128; Jenkins v. Jenkins (1967), 81 Ill. App. 2d 67,

72, 74; Leary v. Leary (1965), 61 Ill. App. 2d 152, 155.)

Finally, the commands of sections 602 and 610 of the new

act to consider only whether the child’s environment en-

dangers his physical, mental, moral and emotional health

(Ill. Rev. Stat. 1977, ch. 40, par. 610) and to disregard any

conduct of the custodian that does not affect his relation-

ship with the child (Ill. Rev. Stat. 1977, ch. 40, par. 602)

reemphasize the principle stated in Nye v. Nye (1952), 411

Til. 408, that the focus of custody determinations must be

the welfare of the child.

The chief issue before us in this case is whether the

open and continuing cohabitation of the custodial parent

with a member of the opposite sex justifies a change in

custody in the absence of any tangible evidence of con-

temporaneous adverse effect on the children, Considering

the principles previously enunciated, and the statutory

provisions, and prior decisions of the courts of this State,

we conclude that under the facts in this case the trial

court properly transferred custody of the Jarrett children

from Jacqueline to Walter Jarrett.

The relevant standards of conduct are expressed in the

statutes of this State: Section 11-8 of the Criminal Code

of 1961 (Tll. Rev. Stat. 1977, ch. 38, par. 11-8) provides

that ‘‘[a]ny person who cohabits or has sexual intercourse

_ nem

with another not his spouse commits fornication if the

behavior is open and notorious.’’ In Hewitt v. Hewitt

(1979), 77 Ill. 2d 49, 61-62, we emphasized the refusal of

the General Assembly in enacting the new Illinois Mar-

riage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977,

ch. 40, par. 101 e¢ seg.) to sanction any nonmarital rela-

tionships and its declaration of the purpose to ‘‘strengthen

and preserve the integrity of marriage and safeguard

family relationships’’ (Ill. Rev. Stat. 1977, ch. 40, par.

102(2)).

Jacqueline argues, however, that her conduct does not

affront public morality because such conduct is now

widely accepted, and cites 1978 Census Bureau statistics

that show 1.1 million households composed of an un-

married man and woman, close to a quarter of which also

include at least one child. This is essentially the same

argument we rejected last term in Hewitt v. Hewitt (1979),

77 Ill. 2d 49, and it is equally unpersuasive here. The

number of people living in such households forms only a

small percentage of the adult population, but more to the

point, the statutory interpretation urged upon us by

Jacqueline simply nullifies the fornication statute. The

logical conclusion of her argument is that the statutory

prohibitions are void as to those who believe the pro-

scribed acts are not immoral, or, for one reason or another,

need not be heeded. So stated, of course, the argument

defeats itself. The rules which our society enacts for the

governance of its members are not limited. to those who

agree with those rules—they are equally binding on the

dissenters. The fornication statute and the Illinois Mar-

riage and Dissolution of Marriage Act evidence the rele-

vant moral standards of this State, as declared by our

legislature. The open and notorious limitation on the form-

er’s prohibitions reflects both a disinclination to crimi-

nalize purely private relationships and a recognition that

open fornication represents a graver threat to public

morality than private violations, Conduct of that nature,

when it is open, not only violates the statutorily ex-

= (i —

pressed moral standards of the State, but also encourages

others to violate those standards, and debases public

morality. While we agree that the statute does not pe-

nalize conduct which is essentially private and discreet

(People v. Cessna (1976), 42 Til. App. 3d 746, 749), Jac-

queline’s conduct has been neither, for she has discussed

this relationship and her rationalization of it with at least

her children, her former husband and her neighbors. It

is, in our judgment, clear that her conduct offends pre-

vailing public policy. Lyman v. People (1902), 198 Ill. 544,

549-50; Searls v. People (1852), 13 Ill. 597, 598; People

v, Potter (1948), 319 Ill. App. 409, 410-11, 416.

Jacqueline’s disregard for existing standards of con-

duct instructs her children, by example, that they, too,

may ignore them (see Stark v. Stark (1973), 13 Ill. App.

3d 35), and could well encourage the children to engage in

similar activity in the future. That factor, of course,

supports the trial court’s conclusion that their daily

presence in that environment was injurious to the moral

well-being and development of the children.

It is true that, as Jacqueline argues, the courts have

not denied custody to every parent who has violated the

community’s moral standards, nor do we now intimate a

different rule. Rather than mechanically denying custody

in every such instance, the courts of this State appraise the

moral example currently provided and the example which

may be expected by the parent in the future. We held in

Nye v. Nye (1952), 411 Tl. 408, 415, that past moral in-

discretions of a parent are not sufficient grounds for

denying custody if the parent’s present conduct establishes

the improbability of such lapses in the future. This rule

focuses the trial court’s attention on the moral values

which the parent is actually demonstrating to the children.

Since the decision in Nye, the appellate courts of this

State have repeatedly emphasized this principle, particu-

larly when the children were unaware of their parent’s

moral indiscretion. (Hendrickson v. Hendrickson (1977),

—_ an

49 Ill. App. 3d 160; Strand v. Strand (1976), 41 Ill. App.

3d 651; Christensen v. Christensen (1975), 31 Ill. App. 3d

1041; Huey v. Huey (1975), 25 Ill. App. 3d 20; Mulvihill

v. Mulvihill (1974), 20 Ill. App. 3d 440; Hahn v. Hahn

(1966), 69 Ill. App. 2d 302; Leary v. Leary (1965), 61 Ill.

App. 2d 152; Jayroe v. Jayroe (1965), 58 Ill. App. 2d 79;

Arden v. Arden (1960), 25 Til. App. 2d 181; Wolfrum v.

Wolfrum (1955), 5 Ill. App. 2d 471.) At the time of this

hearing, however, and even when this case was argued

orally to this court, Jacqueline continued to cohabit with

Wayne Hammon and had done nothing to indicate that

this relationship would not continue in the future. Thus

the moral values which Jacqueline currently represents to

her children, and those which she may be expected to

portray to them in the future, contravene statutorily de-

clared standards of conduct and endanger the children’s

moral development.

Jacqueline argues, however, that three recent cases—

Burris v. Burris (1979), 70 Ill. App. 3d 503, In re Marriage

of Farris (1979), 69 Ill. App. 3d 1042, and Rippon v.

Rippon (1978), 64 Ill. App. 3d 465—indicate that the

moral indiscretion of a parent is not sufficient ground for

denial of custody. In Rippon the mother who had com-

mitted the indiscretion planned to marry her paramour

and there was no indication of future misconduct. Rippon

therefore falls within the rule set out in Nye. Both Farris

and Burris were rendered after, and relied upon, the

appellate decisions in this case (64 Ill. App. 3d 932) and

in Hewitt v. Hewitt (1978), 62 Ill. App. 3d 861, both of

which we have now reversed.

Jacqueline also argues, and the appellate court agreed

(64 Ill. App. 3d 932, 937), that the trial court’s decision

to grant custody of the children to Walter Jarrett was

an improper assertion by the trial judge of his own per-

sonal moral beliefs. She further argues that the assertion

of moral values in this case, as in Hewitt v. Hewitt

(1979), 77 Ill. 2d 49, is a task more appropriately carried

out by the legislature. As pointed out earlier, however, it

—

is the legislature which has established the standards she

has chosen to ignore, and the action of the trial court

merely implemented principles which have long been fol-

lowed in this State.

The mother argues, too, that section 610 of the Illinois

Marriage and Dissolution of Marriage Act (Ill. Rev. Stat.

1977, ch. 40, par. 610) requires the trial court to refrain

from modifying a prior custody decree unless it finds

that the children have suffered actual tangible harm.

The statute, however, directs the trial court to determine

whether ‘‘the child’s present environment endangers

seriously his physical, mental, moral or emotional health.’’

(Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, par.

610(b)(3).) In some eases, particularly those involving

physical harm, it may be appropriate for the trial court to

determine whether the child is endangered by considering

evidence of actual harm. In cases such as this one, how-

ever, such a narrow interpretation of the statute would

defeat its purpose. At the time of the hearing the three

Jarrett children, who were then 12, 10 and 7 years old,

were obviously incapable of emulating their mother’s

moral indiscretions, To wait until later years to determine

whether Jacqueline had inculeated her moral values in the

children would be to await a demonstration that the very

harm which the statute seeks to avoid had occurred.

Measures to safeguard the moral well-being of children,

whose lives have already been disrupted by the divorce of

their parents, cannot have been intended to be delayed

until there are tangible manifestations of damage to their

character.

While our comments have focused upon the moral

hazards, we are not convinced that open cohabitation does

not also affect the mental and emotional health of the

children. Jacqueline’s testimony at the hearing indicated

that when her children originally learned that Wayne

Hammon would move in with them, they initially ex-

pected that she would marry him. It is difficult to predict

what psychological effects or problems may later develop

se

from their efforts to overcome the disparity between their

concepts of propriety and their mother’s conduct. (Gehn

v. Gehn (1977), 51 Ill. App. 3d 946, 949.) Nor will their

attempts to adjust to this new environment occur in a

vacuum. Jacqueline’s domestic arrangements are known to

her neighbors and their children; testimony at the hearing

indicated that Wayne Hammon played with the Jarrett

children and their friends at the Jarrett home and also

engaged in other activities with them, If the Jarrett

children remained in that situation, they might well be

compelled to try to explain Hammon’s presence to their

friends and, perhaps, to endure their taunts and jibes. In

a ease such as this the trial judge must also weigh these

imponderables, and he is not limited to examining the

children for current physical manifestations of emotional

or mental difficulties.

Finally, we do not believe that the United States Su-

preme Court’s opinion in Stanley v. Illinois (1972), 405

U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, requires a

different result. In Stanley the Supreme Court found that

Tlilinois statutes created a presumption that an unwed

father is unfit to exercise custody over his children. The

court held that depriving an unwed father of his illegiti-

mate children without a prior hearing to determine kis

actual rather than presumptive unfitness, when the State

accords that protection to other parents, deprives him of

equal protection of the law.

The case before us is fundamentally different. The

trial court did not presume that Jacqueline was not an

adequate parent, as the juvenile court in effect did in

Stanley. Rather the trial court recognized that the affec-

tion and care of a parent do not alone assure the welfare

of the child if other conduct of the parent threatens the

child’s moral development. Since the evidence indicated

that Jacqueline had not terminated the troublesome re-

lationship and would probably continue it in the future,

the trial court properly transferred custody to Walter

Jarrett, an equally caring and affectionate parent whose

—lla—

conduct did not contravene the standards established by

the General Assembly and earlier judicial decisions.

Accordingly, we reverse the judgment of the appellate

court and affirm the judgment of the circuit court of Cook

County.

Appellate court reversed;

circuit court affirmed.

MR. CHIEF JUSTICE GOLDENHERSH, with whom

MR. JUSTICE MORAN joins, dissenting:

The majority states, ‘‘The chief issue before us in this

case is whether the open and continuing cohabitation of

the custodial parent with a member of the opposite sex

justifies a change in custody in the absence of any tan-

gible evidence of contemporaneous adverse effect on

the children.” (Slip op. at 4.) An examination of the

opinion fails to reveal any other issue, and the effect of

the decision is that the plaintiff’s cohabitation with

Hammon per se was sufficient grounds for changing

the custody order previously entered. This record shows

clearly that the children were healthy, well adjusted,

and well cared for, and it should be noted that both

the circuit and appellate courts made no finding that

plaintiff was an unfit mother. The majority, too, makes

no such finding and based its decision on a nebulous

concept of injury to the children’s ‘‘moral well-being

and development.’’ (Slip op. at 5.) I question that any

competent sociologist would attribute the increase of

*‘live in’? unmarried couples to parental example.

The fragility of its conclusion concerning ‘‘ prevailing

public policy’’ is demonstrated by the majority’s reliance

on cases decided by this court in 1852 (Searls v. People,

13 Ill. 597) and 1902 (Lyman v. People, 198 Tll. 544), and

an appellate court decision (People v. Potter (1943), 319

Tll. App. 409) which, rather than ‘‘prevailing public poli-

cy,’’ more clearly indicates the prejudice extant in that

period against interracial sexual relations.

—_ "on

As the appellate court pointed out, the courts should

not impose the personal preferences and standards of the

judiciary in the decision of this case. Courts are uniquely

equipped to decide legal issues and are well advised to

leave to the theologians the question of the morality of the

living arangement into which the plaintiff had entered.

As a legal matter, simply stated, the majority has held

that on the basis of her presumptive guilt of fornication,

a Class B misdemeanor, plaintiff, although not declared to

be an unfit mother, has forfeited the right to have the

custody of her children. This finding flies in the face of

the established rule that, in order to modify or amend an

award of custody, the evidence must show that the parent

to whom custody of the children was originally awarded

is unfit to retain custody, or that a change of conditions

makes a change of custody in their best interests. This

record fails to show either. Mr. Justice Moran and I dis-

sent and would affirm the decision of the appellate court.

— 13a —

APPENDIX B

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

SUPREME COURT BUILDING

Springfield, Ill, 62706

(217) 782-2035

February 1, 1980

Mr. Michael H. Minton

Attorney at Law

415 W. Golf Rd., Suite 25-27

Arlington Heights, IL 60005

No. 51431 - Jacqueline Jarrett, appellee, vs. Walter Jar-

rett, appellant. Appeal, Appellate Court, First

District.

The Supreme Court today denied the petition for re-

hearing in the above entitled cause. A copy of pages 1,

4, 5 and 8 of the opinion as modified upon such denial

are enclosed.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

pom

Docket No. 51431—Agenda 23—September 1979.

JACQUELINE JARRETT, Appellee, v. WALTER JAR-

RETT, Appellant.

MR. JUSTICE UNDERWOOD delivered the opinion

of the court:

On December 6, 1976, Jacqueline Jarrett received a

divorce from Walter Jarrett in the circuit court of Cook

County on grounds of extreme and repeated mental cruel-

— 14a —

ty. The divorce decree, by agreement, also awarded Jac-

queline custody of the three Jarrett children subject to

the father’s right of visitation at reasonable times. Seven

months later, alleging changed conditions, Walter peti-

tioned the circuit court to modify the divorce decree and

award him custody of the children. The circuit court

granted his petition subject to the mother’s right of visi-

tation at reasonable times, but a majority of the appel-

late court reversed (64 Ill. App. 3d 932), and we granted

leave to appeal.

During their marriage, Walter and Jacqueline had three

daughters, who, at the time of the divorce, were 12, 10

and 7 years old. In addition to custody of the children, the

divorce decree also awarded Jacqueline the use of the

family home, and child support; Walter received visitation

rights at all reasonable times and usually had the children

from Saturday evening to Sunday evening, In April 1977,

five months after the divorce, Jacqueline informed Walter

that she planned to have her boyfriend, Wayne Hammon,

move into the family home with her. Walter protested,

but Hammon moved in on May 1, 1977. Jacqueline and

Hammon thereafter cohabited in the Jarrett home but did

not marry.

The children, who were not ‘‘overly enthused’’ when

they first learned that Hammon would move into the

family home with them, asked Jacqueline if she intended

to marry Hammon, but Jacqueline responded that she did

not know, At the modification hearing Jacqueline testified

that she did not want to remarry because it was too soon

after her divorce; because she did not believe that a mar-

riage license makes a relationship; and because the di-

vorce decree required her to sell the family home within

six months after remarriage. She did not want to sell the

house because the children did not want to move and she

could not afford to do so. Jacqueline explained to the

children that some people thought it was wrong for an

unmarried man and woman to live together but she

— 15a —

thought that what mattered was that they loved each

other. Jacqueline testified that she told some neighbors

that Hammon would move in with her but that she had

not received any adverse comments, Jacqueline further

testified that the children seemed to develop an affee-

a

3d 740, 743; Holloway v. Holloway (1973), 10 Ill. App.

3d 662, 665; Collings v. Collings (1970), 120 Ill. App. 2d

125, 128; Jenkins v. Jenkins (1967), 81 Ill. App. 2d 67,

72, 74; Leary v. Leary (1965), 61 Ill. App. 2d 152, 155.)

Finally, the commands of sections 602 and 610 of the new

act to consider only whether the child’s environment

endangers his physical, mental, moral and emotional health

(Ill. Rev. Stat. 1977, ch. 40, par. 610) and to disregard any

conduct of the custodian that does not affect his relation-

ship with the child (Ill. Rev. Stat. 1977, ch. 40, par. 602)

reemphasize the principle stated in Nye v. Nye (1952), 411

Til, 408, that the focus of custody determinations must be

the welfare of the child.

The chief issue in this case is whether a change of

custody predicated upon the open and continuing cohabi-

tation of the custodial parent with a member of the oppo-

site sex is contrary to the manifest weight of the evidence

in the absence of any tangible evidence of contempora-

neous adverse effect upon the minor children. Consider-

ing the principles previously enunciated, and the statutory

provisions, and prior decisions of the courts of this State,

we conclude that under the facts in this case the trial

court properly transferred custody of the Jarrett children

from Jacqueline to Walter Jarrett.

The relevant standards of conduct are expressed in the

statutes of this State: Section 11-8 of the Criminal Code

of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11-8) provides

that ‘‘[a]ny person who cohabits or has sexual intercourse

with another not his spouse commits fornication if the

behavior is open and notorious.’’ In Hewitt v. Hewitt

(1979), 77 Ill. 2d 49, 61-62, we emphasized the refusal of

— 16a —

the General Assembly in enacting the new Illinois Mar-

riage and Dissolution of Marriage Act (Ill. Rev. Stat.

1977, ch. 40, par. 101 et seq.) to sanction any nonmarital

relationships and its declaration of the purpose to

‘strengthen and preserve the integrity of marriage and

safeguard family relationships’”’ (Tl. Rev. inset 1977, ch.

40, par. 102(2)).

Jacqueline argues, however, that her conduct does not

affront public morality because such conduct is now wide-

ly accepted, and cites 1978 Census Bureau statistics that

show 1.1 million households composed of an unmarried

man and woman, close to a quarter of which also include

at least one child. This is essentially the same argument

we rejected last term in Hewitt v. Hewitt (1979), 77

Til. 2d 49, and it is equally unpersuasive here. The num-

ber of people living in such households forms only a

small percentage of the adult population, but more to the

point, the statutory interpretation urged upon us by

Jacqueline simply nullifies the fornication statute. The

logical conclusion of her argument is that the statutory

prohibitions are void as to those who believe the pro-

_

scribed acts are not immoral, or, for one reason or another,

need not be heeded. So stated, of course, the argument

defeats itself. The rules which our society enacts for the

governance of its members are not limited to those who

agree with those rules—they are equally binding on the

dissenters. The fornication statute and the Illinois Mar-

riage and Dissolution of Marriage Act evidence the rele-

vant moral standards of this State, as declared by our

legislature. The open and notorious limitation on the for-

mer’s prohibitions reflects both a disinclination te crimi-

nalize purely private relationships and a recognition that

open fornication represents a graver threat to public

morality than private violations. Conduct of that nature,

when it is open, not only violates the statutorily expressed

moral standards of the State, but also encourages others

—17a—

to violate those standards, and debases public morality.

While we agree that the statute does not penalize conduct

which is essentially private and discreet (People v. Cessna

(1976), 42 Ill. App. 3d 746, 749), Jacqueline’s conduct has

been neither, for she has discussed this relationship and

her rationalization of it with at least her children, her

former husband and her neighbors. It is, in our judgment,

clear that her conduct offends prevailing public policy.

Lyman v. People (1902), 198 Tll. 544, 549-50; Searls v.

People (1852), 13 Tl. 597, 598; People v. Potter (1943),

319 Til. App. 409, 410-11, 416.

Jacqueline’s disregard for existing standards of con-

duct instructs her children, by example, that they, too,

may ignore them (see Stark v. Stark (1973), 13 Ill. App.

3d 35; Brown v. Brown (1977), 218 Va. 196, 237 S.E.2d

89), and could well encourage the children to engage in

similar activity in the future. That factor, of course,

supports the trial court’s conclusion that their daily

presence in that environment was injurious to the moral

well-being and development of the children.

It is true that, as Jacqueline argues, the courts have

not denied custody to every parent who has violated the

community’s moral standards nor do we now intimate a

different rule. Rather than mechanically denying custody

im every such instance, the courts of this State appraise

the moral example currently provided and the example

which may be expected by the parent in the future. We

held in Nye v. Nye (1952), 411 Tll. 408, 415, that past

moral indiscretions of a parent are not sufficient grounds

for denying custody if the parent’s present conduct estab-

lishes the improbability of such lapses in the future. This

rule focuses the trial court’s attention on the moral values

which the parent is actually demonstrating to the children.

Since the decison in Nye, the appellate courts of

this State have repeatedly emphasized this principle,

particularly when the children were unaware of their

parent’s moral indiscretion. (Hendrickson v. Hendrickson

— 18a —

aaa tes

actual rather than presumptive unfitness, when the State

accords that protection to other parents, deprives him of

equal protection of the law.

The case before us is fundamentally different. The

trial court did not presume that Jacqueline was not an

adequate pareut, as the juvenile court in effect did in

Stamley. Rather the trial court recognized that the affec-

tion and care of a parent do not alone assure the welfare

of the child if other conduct of the parent threatens the

child’s moral development. Since the evidence indicated

that Jacqueline had not terminated the troublesome re-

lationship and would probably continue it in the future,

the trial court transferred custody to Walter Jarrett, an

equally caring and affectionate parent whose conduct did

not contravene the standards established by the General

Assembly and earlier judicial decisions. Its action in

doing so was not contrary to the manifest weight of the

evidence.

Accordingly, we reverse the judgment of the appellate

court and affirm the judgment of the circuit court of Cook

County.

Appellate court reversed;

circuit court affirmed.

— 19a —

APPENDIX C

State of Illinois

Office of

CLERK OF THE SUPREME COURT

Springfield

62706

February 12, 1980

Mr. Arthur M. Solomon

Attorney at Law

Solomon & Behrendt

7 South Dearborn St., Suite 1520

Chicago, IL 60603

In re: Jacqueline Jarrett, appellee,

vs. Walter Jarrett, appellant

No. 51431

Dear Mr. Solomon:

This office has today received from the Reporter of Deci-

sions the dissenting opinion of Mr. Justice Moran (Mr.

Chief Justice Goldenhersh joining therein) concerning the

above entitled cause.

Will you please attach the enclosed dissent to the opinion

previously forwarded to you.

Very truly yours,

Clerk of the Supreme Court

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 Jar-

— 0a —

rett children stemmed from Jacqueline’s living arrange-

ments. The majority purports to follow the Illinois Mar-

riage 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 modi-

fication of the prior custody judgment is necessary to

serve the best interest of the children. (Tll. 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. (Tll. 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-enforeed fornica-

tion statute effectively foreclosed any further considera-

tion of the custody issue. Instead of focusing solely on

the best interest of the children—the ‘‘euiding star’’

(Nye v. Nye (1952), 411 Tl. 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-cus-

tody 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 va-

lidity of the judicially created conclusive presumption in

this case. After Stanley, an unwed father may not be de-

prived 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,

Third Division

9/13/78

No. 77-1321

JACQUELINE JARRETT,

Plaintiff-Appellant,

vs.

WALTER JARRETT,

Defendant-Appellee.

Appeal From The Circuit Court Of Cook County.

Honorable Marion E. Burks, Presiding.

Mr. Presipine Justice Jicanti delivered the opinion of

the court:

This is an appeal by the plaintiff, Jacqueline Jarrett,

from an order of the trial court awarding a change of

custody to the defendant, Walter Jarrett, pursuant to

his petition. The issue presented for review is whether

there was a change of circumstances detrimentally affect-

ing the welfare of the minor children which warranted

a change of custody.

On December 6, 1976, the plaintiff was awarded a

judgment for divorce on the grounds of extreme and

repeated mental cruelty. Pursuant to the judgment order

and Property Settlement Agreement, the plaintiff, having

been found to be a fit and proper person, was granted

sole care, custody, control and education of the three

daughters of the couple, then aged 12, 10 and 7. The de-

fendant was granted visitation rights “at all reasonable

times.”

— 22a —

In April, 1977, Jacqueline informed Walter that Wayne

Hammon, would be moving into the family home where

she and the children lived. Walter protested this arrange-

ment, but Hammon moved into the residence on May

1, 1977.

Walter subsequently filed a petition for change of

custody, and, on July 12, 1977, a postdecree hearing was

held. At the hearing, testimony showed that since the

divorce, Walter had visited with the children every week-

end, wsually picking them up every Saturday evening,

taking them to church, and then preparing their dinner.

The girls would stay overnight and spend all day Sunday

with him, returning home at about 5 p.m. The children

are being raised in the Roman Catholic religion, and

Jacqueline takes the children to religious instruction on

Saturdays.

Walter testified that Jacqueline’s living arrangement

was contrary to his own personal beliefs and that he

would not want his children to be raised in that atmo-

sphere. He stated that he believed it was an improper

moral climate and that he had certain ideals which he

would like to be able to instill in his children. He further

testified that when he picks the children up at Jacqueline’s

home every weekend, they have always been clean, healthy,

well-dressed and well-nourished. He stated that he had

spoken with his oldest daughter, Kathleen, about Ham-

mon and the living arrangement, and she expressed no

serious objections, except that occasionally he would yell

at them when they made noise or something of that

nature.

Wayne Hammon testified that the children refer to

him as Wayne, and that he disciplines the children ver-

bally from time to time. He and Jacqueline had discussed

their situation with the children from time to time in

terms of different people having different beliefs and

that their father felt one way about it while they felt

—

another, and that what mattered was that they loved

each other. Hammon was acquainted with the neighbors,

and had attended school functions with the children.

He and the children had fun together and seemed to get

along. He paid the children their allowances out of his

money.

Jacqueline Jarrett testified that the children have lived

in the present family home in Mount Prospect all their

lives. She and her neighbor alternate driving her oldest

daughter to school before eight-thirty, when Jacqueline

leaves for work. The two younger girls, who do not have

to be in school until nine o’clock, can walk to school

without having to cross a street. When the children are

not in school, she has a part-time sitter who stays with

the children until Hammon gets home. The children are

very fond of Hammon and show him affection, although

when they first learned that he would be moving in, they

were not “overly enthused about it.” They asked if they

were going to get married, and Jacqueline told them she

did not know. She explained to the children that some

people think it is wrong for two people to live together

without a marriage license, but that such was not her

feeling. She testified that she did not want to get married

at that time because it was too soon after the divorce,

that she did not believe a marriage license “makes a

relationship,” that the divorce judgment provides that

upon remarriage she must sell the house within six

months and the children did not want to move, and that

she could not afford it on her present salary. Hammon

helps the children with their homework, and they go to

shows, play games and participate in other activities

as a family unit. Jacqueline stated that the love she and

Hammon feel for each other very definitely manifested

itself to the children and that her children were develop-

ing their own sets of values as individuals and not as

duplicates of herself.

—_—

The trial court granted the defendant’s petition, stating

that it was “necessary for the moral and spiritual well-

being and development” of the children that they reside

with the defendant rather than the plaintiff and on July

19, 1977, the amended judgment order was entered grant-

ing Walter custody of the three children. Jacqueline’s

petition for a rehearing and motion for a stay pending

appeal were denied. The sole issue presented for review

is whether the fact that an unmarried male moved into

the family residence with Jacqueline and her children

constituted a change of circumstances which so detri-

mentally affected the welfare of the children that it was

in their best interests to require a change in custody.

It is well settled in Lllinois that a judgment for divorce

cannot be modified or amended unless there has been a

material change of circumstances since its entry. (Jacobs

v. Jacobs (1974), 25 Ill App. 3d 175, 177, 323 N.E.2d

21, Taylor v. Taylor (1961), 32 Ill. App. 2d 45, 48, 176

N.E.2d 640.) Every presumption is indulged in favor of

the validity of the judgment, and it its provisions are

to be changed, the burden of proof is on the moving

party to show why the change should be made. (Jacobs

at 170; Eggemeyer v. Eggemeyer (1967), 86 Ill. App.

2d 224, 230, 229 N.E.2d 144; Abbott v. Abbott (1976), 40

Ill, App. 3d 348, 350, 352 N.E.2d 317.) The evidence

must establish that the parent to whom custody of the

children was originally awarded is unfit to retain custody

or that a change of conditions makes a change of custody

in their best interests. Vanderlaan v. Vanderlaan (1972),

9 Ill. App. 3d 260, 264, 292 N..2d 145; Stickler v. Stickler

(1962), 38 Til. App. 2d 191, 186 N.E.2d 542.

In all matters concerning the custody of children, the

paramount issue is their welfare. The fact of changed

conditions, in itself, is not sufficient to warrant modifica-

tion of the custody provisions of the decree absent a

finding that such changed conditions affect the welfare

of the children. (Eggemeyer at 231; Jacobs at 178;

— 3a —

Arden v. Arden (1960), 25 Til. App. 2d 181, 186, 166 N.E.

2d 111; Garland v. Garland (1974), 19 Tll. App. 3d 95i,

954, 312 N.E.2d 811.)

“‘In determining whether there have been changed

conditions the court must keep in view primarily

the welfare of the child. The custody of the child

is not awarded: for the purpose of gratifying the

feelings of either parent or with any idea of punish-

ing or rewarding either parent.’ Hamilton v. Ander-

son, 176 Ark. 76, 2 S.W.(2d) 673.’’ Maupin v. Maupin

(1950), 339 Ill. App. 484, 489, 90 N.E.2d 234; Wade

v. Wade (1951), 345 Til. App. 170, 180, 102 N.E.2d

356; Arden at 186.

While the trial court has broad discretion in such

cases, such discretion is not unlimited but is subject to

review and will be reversed if exercised in a manner

contrary to the manifest weight of the evidence. (Eaton

v. Eaton (1977), 50 Til. App. 3d 306, 310, 365 N.E.2d

647; Comiskey v. Comiskey (1977), 48 Tll. App. 3d 17,

24, 366 N.E.2d 87.) Since the children and the parents

are entitled to a certain degree of finality and conclusive-

ness when an order of custody is entered, (Collings v.

Collings (1970), 120 Tl. App. 2d 125, 128, 256 N.F.2d

108), the person seeking a change of custody must posi-

tively demonstrate that the change is necessary for the

welfare of the children. King v. Vancil (1975), 34 Til.

App. 3d 831, 834, 836, 341 N.F.2d 65.

The original judgment order found Jacqueline to be a

fit and proper person to have sole responsibility for the

care, custody, control and education of the children. Such

an award must be viewed as embracing all the ramifica-

tions of those terms, including the development of a

person by fostering to varying degrees of growth or

expansion of knowledge, wisdom, desirable qualities of

mind or character, physical health. or general competence.

Evidence in the instant case raised no question of Jaeque-

line’s fitness as a guod mother who. properly cared for

— 26a —

the physical and emotional needs of her daughters. The

question raised by the defendant is whether her open

relationship with Hammon constitutes such a disregard

for community standards as to endanger her children’s

moral well-being.

The defendant points out that the new Illinois Marriage

and Dissolution of Marriage Act (Ill. Rev. Stat. 1977,

ch. 40, par. 610(3)) provides that a custody judgment

can be modified where “the child’s present environment

endangers seriously his * * * moral or emotional health

and the harm likely to be caused by a change of environ-

ment is outweighed by its advantages to him.” However,

the courts of this State have often allowed women whose

behavior society may have considered to be questionable

to retain custody of their children or have refused to

change custody in the absence of any evidence that the

“iImprudence” was detrimental to the child’s welfare. (Sec

Eaton v. Eaton (1977), 50 Til. App. 3d 306, 365 N.F.2d

647; Hendrickson v. Hendrickson (1977), 49 Tll. App. 3d

160, 364 N.E.2d 566; Christiansen v. Christiansen (1975),

31 Tl. App. 3d 1041, 335 N.E.2d 581; VanBuskirk v.

VanBuskirk (1974), 19 Tll. App. 3d 647, 312 N.F.2d 395:

Collings v. Collings (1970), 120 Til. App. 2d 125, 256

N.E.2d 108; Arden v. Arden (1960), 25 Tll. App. 2d 181.

166 N.E.2d 111; Brown v. Brown (1957), 13 Til. App. 2d

56, 140 N.F.2d 528; Nye v. Nye (1952), 411 Til. 408, 105

N.E.2d 300).

We also note that the Illinois Marriage and Dissolution

of Marriage Act provides that in determining custody

in accordance with the best interests of the child, “[t]he

court shall not consider conduct of a present or proposed

custodian that does not affect his relationship to the

child.” (Til. Rev. Stat. 1977, ch. 40, par. 602(b).) By

statutory mandate, it is not our function to approve or

disapprove Jacqueline’s conduct, but only to determine

its effect upon the children.

— 27a —

In the case at bar, it has neither been contended nor

proved that Jacqueline was not a kind, affectionate

mother; neither has it been shown that she neglected her

children in any way. No fault was found or disclosed

as to the appearance, health, or stability of the children

or of the condition of the home. The schooling and

religious training of the girls was being attended to by

Jacqueline, who took them to religious classes every

Saturday morning as well as by their weekly attendance

at church with their father. It is evident that Jacqueline

Jarrett, Wayne Hammon, and the three Jarrett children

function as a family unit. Hammon disciplines the chil-

dren, helps them with their homework, plays with them.

There was no noticeable disruption of the children’s

routine by Hammon’s entry into their lives, nor were thev

subject to the vagaries of an unstable relationship,

shuttled back and forth between residences, or given

cause to suspect that anything of an improper nature

was transpiring. There was no evidence of any feelings

of guilt or fears aroused in the children. Jacqueline and

Hammon were open in their feelings for each other,

open in their relationship to the children and to their

community. From the evidence in the record before us,

they are mature adults and their relationship is not

relevant here unless it is shown as having a negative

effect on the children. (Hendrickson v. Hendrickson

(1977), 49 Ill. App. 3d 160, 163, 364 N.E.2d 566.) In the

absence of any evidence of such negative effects, we

decline to indulge in speculation as to what effects might

possibly “raise their ugly heads” at some future time,

Gehn v. Gehn (1977), 51 Til. App. 3d 946, 949, 367 N.F.

2d 508.

There was neither a specific finding of Jacqueline’s.

unfitness nor evidence which would support that conclu-

sion. Similarly we see no evidence to warrant the con-

clusion that a change of custody was necessary to serve

the best interests of the children. We do find it to be an

— an

abuse of discretion for the trial court to impose its own

standard in this regard and infer, without any evidence

in the record, that Jacqueline’s conduct in living with a

man to whom she was not married was detrimental to

the welfare of the children and in and of itself sufficient

to disqualify her as the custodian of the children. Accord,

In re Marriage of Moore (1975), 33 Colo. App. 129, 531

P.2d 995.

For the foregoing reasons, the judgment of the circuit

court of Cook County is reversed.

Reversed.

Simon, J., specially concurs.

McNamara, J., dissents.

Mr. Justice Simon specially concurring:

IT concur fully in the court’s opinion. In addition, I

think it relevant to point out a circumstance which came

to our attention during oral argument, indicating that

the change of custody was unrealistic and likely to have

been based more on the trial judge’s adverse reaction

to the living arrangements of Jacqueline and Wayne—

neither of whom was married—than on consideration of

the best interest of the children. After custody was

transferred from Jacqueline to Walter, the children lived

with Walter during the week but spent weekends at their

mother’s home. Thus, the children continued to be exposed

to the same relationship between Jacqueline and Wayne

that prompted the trial judge to grant a change of

custody.

Whether right or wrong, it appears to be more and

more common for a person, including a divorced parent,

to live with one of the opposite sex without marriage.

Prosecution by legal authority in such a situation todav

is extremely unusual. Realistically, if a divorced pa. +t

chooses to enter into such a living arrangement, there

is no way to insulate his or her children from knowledge

—

of and exposure to the relationship the parent is main-

taining, unless, perhaps, a court is willing to go to the

extreme and unusual length of terminating the parent’s

visitation privileges. No one in this case has even sug-

gested such a drastic and cruel approach. Here, living

with their mother and Wayne on a permanent basis

could not affect the children appreciably differently than

spending weekends with their mother and Wayne after

their custody was changed. In either case the children

were fully exposed to their mother’s relationship with

Wayne and, therefore, that relationship in itself did not

warrant a change in custody.

McNamara, J., dissents.

The majority opinion finds that the wife is openly living

with a man to whom she is not married, but holds that

the trial court abused its discretion in concluding that

such criminal conduct on her part constituted a material

change of circumstances detrimentally affecting the wel-

fare of the children and warranting a change in their

custody. I rather think that the trial court would have

committed manifest error if it had overlooked the wife’s

criminal conduct and had not placed the children in the

custody of the father.

In Hahn v. Hahn (1966), 69 Ill. App.2d 302, 216 N.E.2d

229, the trial court transferred custody of the minor

children from the wife to the husband because the wife

had begun living in open adultery with a married man.

The trial court took this action despite the fact that at

about the time the petition for change of custody was

filed, the married man had moved to Wisconsin. In af-

firming the trial court’s action, this court stated at p. 305:

‘While the trial court found in this case that the

evidence showed no sign of lack of affection nor was

there evidence of physical neglect, certainly Dale’s

[the wife’s] conduct cannot be considered conducive

to the proper moral training that children of tender

— 30a —

years need. We argee with the trial court that the

record here is void of evidence that would give any

assurance that Dale intended to abandon her ways.

In matters concerning the custody of infant children

the court will not disturb the determination of the

trial judge who has heard the evidence and has had

an opportunity to observe the parties, unless it ap-

pears manifest injustice has been done.’’ Rodely v.

Rodely, 28 I11.2d 347, 350, 192 N.E.2d 347.

In Gehn v. Gehn (1977), 51 Ill. App.3d 946, 367 N.E.2d

508, the trial court transferred the custody of five minor

children from the wife to the husband on the ground that

the wife ‘‘became deeply involved in an affair with her

boyfriend who was separated but still married to his

wife.’’ This court affirmed the change of custody, stating

at p. 949:

‘‘The record in this case supports a finding that the

plaintiff had no qualms in exposing and exhibiting to

her children her illicit relationshp with her boyfriend.

The plaintiff admits her immoral conduct, but argues

that no testimony was presented which would show

that her conduct had any ill effects upon the children.

It might be not only difficult but impossible to present

evidence showing objective effects that such conduct

would have on minor children. The effects may well

be subjective ones that will raise their ugly heads

and make their presence known at some future time.

Certainly the conduct of the plaintiff cannot be re-

garded as good and wholesome moral training. We

further note that the plaintiff utterly failed to dis-

play any degree of penitence as far as her conduct

was concerned, but on the contrary assured the court

that if she continued to have custody of the children

she would persist in the overnight sojourns to her

boyfriend’s house with her five children.’’

— 3la —

The majority dismiss the Gehn holding by stating that

they decline to engage in speculation as to what effect

plaintiff’s conduct in the present case will have on her

children in the future. While I do not agree that the Gehn

court was engaged in speculation, the present record clear-

ly reveals that the trial court was justified in transfer-

ring custody. The wife testified that she had explained

to the children that she believed there was nothing wrong

about her conduct and further testified that she was per-

mitting the children to develop their own set of values.

When a mother teaches children that her own criminal

conduct is proper, it is unlikely that she will be able to

proscribe any future illegal activities of the children. The

trial court correctly found a material change of circum-

stances affecting the welfare of the children. It properly

transferred custody of the children to the husband. The

trial court’s holding was not contrary to the manifest

weight of the evidence, and I believe it should be affirmed.

— 32a —

APPENDIX E

Section 602: Best Interests of the Child.

“(a) The Court shall determine custody in accord-

ance with the best interests of the child. The court

shall consider all relevant factors, including 1) the

wishes of the child’s parent or parents as to his cus-

tody; 2) the wishes of the child as to his custodian ;.

3) the interaction and interrelationship of the child

with his parents or parent, his siblings and any oth-

er person who may significantly affect the child’s

best interests; 4) the child’s adjustment to his home

school and community; and 5) the mental and phys-

ical health of all individuals involved.

“(b) The Court shall not consider conduct of a pre-

sent or proposed custodian that does not affect his

relationship with the child.

Section 610. Modification.

“(b) The Court shall not modify a prior custody

judgment unless it finds on the basis of the facts

that have arisen since the prior judgment or have

been unknown to the Court at the time of entry of

the original judgment that a change has occurred in

circumstances of the child or his custodian and that

a modification is necessary to serve the best interests

of the child. In applying these standards the Court

shall retain the custodian appointed pursuant to the

prior judgment unless . . . (3) the child’s presenti

environment endangers seriously his physical, men-

tal, moral or emotional health, and the harm likely

to be caused by a change in environment is out-

weighted by the benefits to him .. .”