Petition — Thompson v. Thompson

Court, U.S.

83-281 | LLED

AUG 29 1933

NO | a aes

IN THE SUPREME COURT OF THE UNITED-STATESS

OCTOBER, 1983 TERM _

IN RE: THE MARRIAGE OF

JOHN DELANCE THOMPSON

ON PETITION FOR

WRIT OF CERTIORARI

)

)

)

)

RESPONDENT, )

To THE SUPREME

AND Court oF ILLINOIS

KATHRYN MAE THOMPSON ‘

PETITIONER )

PETITION FOR WRIT OF CERTIORARI

THOMAS J. LOGUE

GLENN & LOGUE, ATTORNEYS

901 CHARLESTON AVENUE

MATTOON, IL,

61938

TELEPHONE: (217) 234-7461

ATTORNEYS FOR KATHRYN MAE

THOMPSON, PETITIONER.

S REQUESTED

S GRANTED

\

ORAL ARGUMENT I

IF PETITION |

NO,

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER, 1983 TERM

IN RE: THE MARRIAGE OF

JOHN DELANCE THOMPSON,

ON PETITION FOR

WRIT OF CERTIORARI

)

)

RESPONDENT, ?)

) to THE SUPREME

AND

C

KATHRYN MAE THOMPSON, a

PETITIONER. )

PETITION FOR WRIT OF CERTIORARI

THOMAS J. LOGUE

GLENN & LOGUE, ATTorNEYs

901 CHARLESTON AVENUE

MATTOON, IL. 61938

TELEPHONE: (217) 234-7461

ATTORNEYS FOR KATHRYN

MAE THOMPSON, PETITIONER

ORAL ARGUMENT IS REQUESTED

IF PETITION IS GRANTED

NO,

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER, 1983 TERM

IN RE: THE MARRIAGE OF

JOHN DELANCE THOMPSON, ) On PETITION FOR

RESPONDENT, ) WRIT OF CERTIORARI

AND TO THE SUPREME

KATHRYN MAE THOMPSON, CourT oF ILLINOIS,

PETITIONER, )

PETITION FOR WRIT OF CERTIORARI

(A)

THE QUESTION PRESENTED FOR REVIEW

1. MuST THERE BE CONSISTENCY IN THE

APPLICATION OF THE LAW AS TO WHEN MORAL INDIS~

CRETIONS OF A PARENT WILL COST A PARENT LOSS

OF CUSTODY OF A CHILD, OR CAN THE STATE COURT

TRIAL JUDGE ARBITRARILY APPLY THE RULE OR

REFUSE TO APPLY THE RULE IN REACHING HIS

DECISION WITHOUT DENYING THE PARENT WHO LOSES

CUSTODY OF THE CHILD OF DUE PROCESS OF LAW

AND EQUAL PROTECTION OF THE LAW UNDER THE

-2-

14TH AMENDMENT TO THE UNITED STATES CONSTI TU-

TION?

2. CAN THE DETERMINATION OF THE BEST

INTEREST OF THE CHILD PRECLUDE THE CONSIDERA-

TION BY THE COURT OF THE MISDEEDS AND MIS~

OMISSIONS BY THE PARENT IN GRANTING CUSTODY

OF THE CHILD TO ONE OF THE PARENTS WITHOUT

DENYING THE PARENT DENIED CUSTODY OF DUE

PROCESS OF THE LAW, AND EQUAL PROTECTION OF

THE LAW UNDER THE 14TH AMENDMENT TO THE

UniteD Srates CONSTITUTION?

(B)

TABLE OF CONTENTS

A. THE QUESTIONS PRESENTED FOR

REVIEW Ps 2

B, JABLE OF CONTENTS Z 3

C. TABLE OF AUTHORITIES Pe 5

D, REFERENCE TO THE OFFICIAL

AND MODIFIED REPORTS OF

ANY OPINIONS DELIVERED IN

THE COURTS BELOW P, 6

-

1)

GROUNDS UPON WHICH JURISDIC-

TION OF THE SUPREME CouRT IS

INVOLVED, af

l,

DATE OF JUDGMENT SOUGHT

TO BE REVIEWED AND THE

TIME OF ITS ENTRY, Pp.

DATE OF ANY ORDER

RESPECTING A REHEARING, PP,

STATUTORY PROVISION CON-

FERRING JURISDICTION ON

THE SUPREME CouRT TO

REVIEW THE JUDGMENT IN

QUESTION BY WRIT OF

CERTIORARI. Pi

CONSTITUTIONAL PROVISION

INVOKED IN THIS APPEAL P,

CONCISE STATEMENT OF FACTS,

MATERIAL TO THE CONSIDERA-

TION OF THE QUESTIONS PRE-

SENTED, ¢

TIMELY RAISING OF THE

FEDERAL QUESTION IN THE

STATE CourT, id

ARGUMENT P,

CONCLUSION P,

APPENDIX

OPINION OF SUPREME CoURT OF

ILLINOIS (THOMPSON) P.A,

-4-

19

33

BS

2) OPINION OF SUPREME CouRT OF

ILLINOIS (JARRETT) Ps 61

5) OPINION OF APPELLATE CouRT

(THOMP SON ) on 92

4) PETITION FOR REHEARING FILED

IN SUPREME CouRT OF ILLINOIS

( THOMP SON ) Fe ie 109

5) JUDGMENT OF TRIAL CouRT

(THOMP SON ) rs me 124

6) LETTER OPINION FROM TRIAL

Court JuDGE (THOMPSON) P. A. 129

7) LETTER FROM CLERK OF ILLINOIS

SUPREME COURT DENYING PETITION

FOR REHEARING (THOMPSON) Pe 13]

(C)

TABLE OF AUTHORITIES

16A Am, Jur. 2D, CONSTITUTIONAL LAW,

Sec, 737 2 P. 774; Sec, 740 a P. 782; Sec,

742 ap. 790; Sec. 816 ap. 978,

BARROW VS. JACKSON 346 U.S, 249; 97

L, ED. 1586 ap. 1594 73S, Ct. 1031 Ren.

Den. 346 U.S. 841 98 L. ED. 361, 74S. Cr.

19,

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION,

-5-

MISSOURI EX. REL. GAINES VS. CANADA 305

U.S. .337, 83 L. ED. 208 2p. 2135, 59S. Cr.

232 ReH. Den. 305 U.S, 676, 83 L. ED. 437, 59

S, Ct, 356 AND CONFORMED TO 344 Mo, 1238, 131

SW 2p 217,

(D)

REFERENCE TO THE OFFICIAL AND UNOFFICIAL

REPORTS OF ANY OPINIONS DELIVERED IN THE

COURTS BELOW:

OPINION APPEALED FROM (S, CT. OF

ILLINorIs) 449 NE 2p 88, 70 ILL. Dec. 214,

1983, 96 ILL. 2D 67. (THOMPSON V. THOMPSON)

WHICH OPINION WAS AN APPEAL FROM THE

APPELLATE CourT OF ILLINOIS, FOURTH DISTRICT,

FOUND AT 100 ILL. App. 3p 1203, 57 ILL.

Dec, 815, 429 NE 2p 932,

(E)

GROUNDS UPON WHICH JURISDICTION OF THE

SUPREME CouRT OF THE UNITED STATES IS INVOKED:

1) DATE OF JUDGMENT SOUGHT TO BE

REViEWED AND THE TIME OF ITS ENTRY, APRIL

-6-

13, 1983,

2) DATE OF ANY ORDER RESPECTING A

REHEARING:

PETITION FOR REHEARING WAS DENIED,

May 27, 1983,

3) STATUTORY PROVISION CONFERRING

JURISDICTION ON THE SUPREME COURT TO REVIEW

BY WRIT OF CERTIORARI.

U.S.C. CH, 28, Sec. 1257 (c)

"FINAL JUDGMENTS OF DECREES RENDERED

BY THE HIGHEST COURT OF A STATE

IN WHICH A DECISION COULD BE HAD MAY

BE REVIEWED BY THE SUPREME COURT AS

FOLLOWS:

As ser

were

C. By Writ oF CERTIORARI, WHERE

THE VALIDITY OF A TREATY OR STATUTE

OF THE UNITED STATES, OR WHERE ANY

TITLE, RIGHT, PRIVILEGE OR IMMUNITY

-7-

IS SPECIALLY SET UP OR CLAIMED UNDER

THE CONSTITUTION, TREATIES, OR

STATUTES OF, OR, COMMISSION HELD OR

AUTHORITY EXERCISED UNDER, THE UNITED

STATES,”

4) CONSTITUTIONAL PROVISIONS INVOLVED

IN THIS CASE,

"14TH AMENDMENT TO THE UNITED STATES

CONSTITUTION, SECTION 1: ALL PERSONS

BORN OR NATURALIZED IN THE UNITED

STATES, AND SUBJECT TO THE JURIS~

DICTION THEREOF, ARE CITIZENS OF THE

UNITED STATES AND OF THE STATE WHEREIN

THEY RESIDE. NO STATE SHALL MAKE OR

ENFORCE ANY LAW WHICH SHALL ABRIDGE

THE PRIVILEGES OR IMMUNITIES OF CITIZENS

OF THE UNITED STATES; NOR SHALL ANY

STATE DEPRIVE ANY PERSON OF LIFE,

LIBERTY OR PROPERTY, WITHOUT DUE PRO-

CESS OF LAW; NOR DENY TO ANY PERSON

-8:-

WITHIN ITS JURISDICTION THE EQUAL

PROTECTION OF THE LAWS,”

5S, CONCISE STATEMENTS OF THE FACTS MATERIAL

TO THE CONSIDERATION OF THE QUESTIONS PRE-

SENTED:

JOHN AND KATHY THOMPSON WERE MARRIED

ON NovemBerR 16, 1973 IN PonTIAC, MICHIGAN,

ONE CHILD WAS BORN AS ISSUE OF THAT MARRIAGE,

DANIEL THOMPSON, BorN APRIL 18, 1977,

On DecemBerR 7, 1979 HE FILED HIS

PETITION FOR DISSOLUTION OF MARRIAGE AND

FOR TEMPORARY CUSTODY OF HIS SON. THE CIR-

culT Court oF CoLEs COUNTY GRANTED TEMPORARY

CUSTODY TO JOHN ON DECEMBER 7, 1979, ON

DecemBer 12, 1979 a Circurt Court IN

MICHIGAN GRANTED TEMPORARY CUSTODY OF HER

SON, DANNY, TO HER. ON DecemBer 30, 1979

HE FORCIBLY ABDUCTED DANNY FROM KATHY ON A

STREET IN SAGINAW, MICHIGAN, PLACED HIM IN

THE DETECTIVE’S CAR AND SPIRITED HIM OFF

TO ILLINOIS,

AFTER JOHN GOT DANNY FROM KATHY IN

MICHIGAN, HE TOOK HIM BACK TO THE FAMILY

HOME AT R.R. #1, LERNA, ILLINOIS NEAR

MATTOON. HE CARRIED ON AN ADULTEROUS AFFAIR

THERE WITH ONE, BETTY COFFMAN. SHE TESTIFIED

THAT SHE HAD SEXUAL INTERCOURSE WITH JOHN

AT LEAST 30 TIMES AND THAT SHE SLEPT WITH

JOHN EVERY NIGHT THAT SHE WAS THERE, THAT

THEIR BEDROOM WAS NEXT TO DANNY’S BEDROOM,

SHE TESTIFIED THAT SHE LEFT JOHN OR BROKE

OFF THE RELATIONSHIP BECAUSE OF AN ADULTER-

OUS AFFAIR HE WAS CONDUCTING WITH ONE,

NORMA POTTER,

BETTY COFFMAN TESTIFIED THAT JOHN

THREATENED HER AGAINST TESTIFYING IN THE

CUSTODY TRIAL BY THREATENING TO SHOW NUDE

PICTURES OF HER, AND ATTEMPTED TO GET IN HER

HOUSE, SHE HAD TO CALL THE WEST TERRE

-l0-

HAUTE, INDIANA POLICE. SHE SWORE OUT A

WARRANT FOR HIS ARREST IN WEST TERRE HAUTE,

INDIANA, WHICH WARRANT IS STILL PENDING FOR

ATTEMPT TO BREAK INTO THE HOUSE,

JOHN PREVIOUSLY MARRIED AND DIVORCED,

HE HAD TWO CHILDREN BY HIS PREVIOUS MARRIAGE,

THE OLDER, A GIRL, HE HASN’T SEEN FOR 9

YEARS. THE YOUNGER, A BOY, HE HAS NEVER

SEEN, RESPONDENT'S EXHIBIT # 2 IS A CON-

SENT ORDER ISSUED BY A MICHIGAN CourT

DEDUCTING $100.00 PER WEEK FROM JOHN'S

SALARY FOR SUPPORT OF HIS TWO CHILDREN

BY THE PREVIOUS MARRIAGE,

6, TIMELY RAISING OF THE FEDERAL

QUESTION IN THE STATE COURT

THE CONSTITUTIONAL ARGUMENT IN THIS

CASE WAS FIRST RAISED IN THE STATE CourT

SYSTEM IN KATHY ALLEN’sS PETITION FOR

REHEARING IN THE SUPREME COURT OF

ILLINOIS,

-]]-

THIS IS THE FIRST TIME KATHY ALLEN

COULD HAVE RAISED THIS CONSTITUTIONAL

ARGUMENT SINCE THE BASIS FOR THIS ARGU-

MENT AROSE FOR THE FIRST TIME, WE SUBMIT,

IN THE OPINION OF THE SUPREME COURT OF

ILLINOIS, WHEN IT REFUSED TO FOLLOW IT’S

REASONING AND RATIONALE IN THE CASE OF

JARRETT VS, JARRETT 36 ILL. Dec. 1 @ PAGE

6, 400 NE 2np 421, 78 Itt. 2np 337, 1979,

INDEED IT DID NOT REVERSE THE JARRETT CASE

NOR DID IT DISTINGUISH THE JARRETT CASE

BUT REFUSED TO APPLY IT’S PRINCIPLES AND

RATIONALE TO THE CASE AT BAR (THIS CASE),

THE SupREmME CourT OF ILLINOIS SAID AT

PAGE 7 OF IT’S OPINION,

"THE RESPONDENT, KATHRYN THOMPSON,

ARGUES THAT JARRETT VS. JARRETT (1979),

78 Itt. 2ND 337, STRONGLY SUPPORTS

THE CONTENTION THAT SHE BE AWARDED

THE CHILD. JHE RESPONDENT ASSERTS

THAT THE APPELLATE CouRT IGNORED THE

-12-

MANDATE OF JARRETT IN NOT ADDRESS-

ING THE ‘MORAL TRANSGRESSIONS’ OF

JOHN, JARRETT vs, JARRETT (1979),

78 Itt, 2ND 337 1S AUTHORITY FOR THE

PROPOSITION THAT A CHILD SHOULD BE

PLACED WITH THE PARENT WHO CAN BEST

SERVE THAT CHILD. THE JARRETT CASE

DOES NOT ESTABLISH A CONCLUSIVE PRE-

SUMPTION THAT BECAUSE A CUSTODIAL

PARENT COHABITATES WITH A MEMBER OF

THE OPPOSITE SEX, THE CHILD IS HARMED,

NO SUCH PRESUMPTION EXISTS IN THIS

STATE. THE CourT IN JARRETT INDICATED

THAT A CUSTODY AWARD IS NOT ARRIVED

AT BY PRESSING ONE LEVER AND MECHAN-

ICALLY DENYING CUSTODY TO ONE PARENT;

RATHER ALL THE CIRCUMSTANCES MUST BE

CONSIDERED THAT AFFECT THE BEST

INTERESTS OF THE CHILD. JARRETT VS.

JARRETT (1979) 78 ILL. 2nd 337, 344-

-]3-

45 Itt. Rev. Stat. 1979, Cu. 40,

Par, 602.”

WE SUBMIT THERE IS NO LAW UNDER THIS

SITUATION TO GUIDE THE TRIAL JUDGE. THERE

IS NO LAW FOR A PARENT TO FOLLOW IN ORDER

TO RETAIN CUSTODY OF HIS OR HER CHILD. HE

OR SHE DOES NOT KNOW WHAT TO DO OR NOT TO

DO TO PROTECT HIMSELF OR HERSELF IN A CUS™~

TODY BATTLE. THERE IS NO EQUAL PROTECTION

OF THE LAWS UNDER THIS SITUATION WHILE THE

THOMPSON AND JARRETT OPINIONS REMAIN

UNCHANGED, IN THIS SITUATION WE HAVE A

GOVERNMENT OF MEN AND NOT OF LAWS,

PRIOR TO THE SUPREME COURT OF

ILLINOIS’S DECISION IN THOMPSON, MANY PEOPLE,

INCLUDING KATHRYN THOMPSON, AND HER ATTORNEY,

AND JusSTICE MORAN THOUGHT THAT THE JARRETT

CASE CREATED A CONCLUSIVE PRESUMPTION THAT

-]4-

BECAUSE A CUSTODIAL PARENT COHABITATES

WITH A MEMBER OF THE OPPOSITE SEX, THE CHILD

IS HARMED, WHICH OPINION WAS NOT DISPROVEN

UNTIL THE THOMPSON OPINION WAS ISSUED,

IN THE THOMPSON DECISION WE FOUND OUT

THAT THERE IS NO SUCH CONCLUSIVE PRESUMPTION

IN THE LAW OF THE STATE OF ILLINOIS. HoOW-

EVER, FOR PURPOSES OF THIS PETITION FOR

WRIT OF CERTIORARI IT MAKES NO DIFFERENCE

WHETHER THE PRESUM’ TION IN JARRETT IS CON-

CLUSIVE OR NOT. THE EVIL COMPLAINED OF

EXISTS WHETHER THE PRESUMPTION IS CONCLU-

SIVE OR NOT. THE SUPREME COURT IN THOMPSON

DID NOT REVERSE JARRETT, DID NOT DISTIN-

GUISH IT, DID NOT EVEN EXPLAIN IT AWAY, BUT.

LEFT THE TWO CASES, JARRETT & THOMPSON

DIAMETRICALLY OPPOSED TO EACH OTHER, STAND-

ING AS THE LAW OF THE STATE OF ILLINOIS,

WE SUBMIT THERE IS NO LAW BECAUSE OF THIS

APPROACH BY THE SUPREME COURT OF ILLINOIS

AND HER RIGHTS UNDER THE DUE PROCESS CLAUSE

-15-

INCLUDING THE EQUAL PROTECTION OF THE LAWS

CLAUSE OF THE UNITED STATES CONSTITUTION

(FOURTEENTH AMENDMENT), HAS BEEN DENIED TO

KATHRYN THOMPSON,

SINCE THIS SITUATION AROSE WITH THE

PUBLICATION OF THE THOMPSON OPINION, AND

DID NOT EXIST PRIOR THERETO, KATHRYN THOMP-

SON URGED THE CONSTITUTIONAL ARGUMENT SHE

IS URGING IN THIS CoURT AT THE EARLIEST

POSSIBLE TIME THEREAFTER AND THAT WAS IN

THE FILING OF THE PETITION FOR REHEARING,

ON PAGE 7 THEREOF, SHE STATED:

"KATHRYN MAE THOMPSON wAS DENIED

THE RIGHTS TO DUE PROCESS OF LAW

UNDER THE FEDERAL CONSTITUTION, BE-

ING THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION WHICH

PROVIDES “NOR SHALL ANY STATE DEPRIVE

ANY PERSON OF LIFE, LIBERTY, OR

PROPERTY WITHOUT DUE PROCESS OF LAW,’

AND ARTICLE | oF SECTION 2 OF THE ILLINOIS

-|6§-

CONSTITUTION WHICH PROVIDES,

"NO PERSON SHALL BE DEPRIVED OF

LIFE, LIBERTY, OR PROPERTY WITH-

OUT DUE PROCESS OF LAW,’

WE STATE THAT HER RIGHTS UNDER BOTH OF

THESE DUE PROCESS CLAUSES, THAT IS THE

FEDERAL AND STATE DUE PROCESS CLAUSES, WERE

DENIED BY:

Asses

B, THE COURT IN FAILING TO OVER-

RULE THE LAW OF THE JARRETT CASE, BUT

REFUSING TO APPLY THE RULE IN IT TO

THIS CASE AT BAR, HAS CREATED A SITUA~

TION WHERE THERE IS INDEED NO LAW TO

GOVERN THE DISPOSITION OF CUSTODY

CASES IN THE STATE OF ILLINOIS. THERE

ARE NO YARDSTICKS TO FOLLOW. IT LEAVES

THE JUDGE FREE TO ALLOW HIS WHIM,

CAPRICE, BIAS OR ARBITRARINESS, THE

FACT THAT THERE IS NO LAW IN THE

STATE OF ILLINOIS TO GOVERN THIS TYPE

-]7-

OF SITUATION DENIES KATHRYN MAE

THOMPSON DUE PROCESS OF LAW IN THE

LOSS OF THE CUSTODY OF HER SON, DANNY,

THE NET RESULT OF THIS CASE, LEAVING THE

RULE ANNOUNCED IN THE JARRETT CASE UNREVERSED,

1S TO RESULT IN NO LAW AT ALL FOR THE PEOPLE

OF THE STATE OF ILLINOIS, ITS JUDGES AND

ATTORNEYS TO FOLLOW IN A CUSTODY CASE, BUT

PERMITS THE TRIAL COURT TO ACT ACCORDING TO

HIS OR HER PERSONAL BIAS, PREJUDICE, WHIM

OR CAPRICE. KATHRYN MAE THOMPSON HAS BEEN

DENIED HER RIGHTS TO DUE PROCESS OF LAW

UNDER THE ILLINOIS AND FEDERAL CONSTI TU-

TIONS,”

WE SUBMIT THAT KATHRYN THOMPSON RAISED

THE UNITED STATES CONSTITUTIONAL ARGUMENT

IN THE STATE CourRTS OF ILLINOIS AT THE

EARLIEST POSSIBLE TIME,

/, ARGUMENT

MAY IT PLEASE THE CourT: THE LAW, LIKE

THE RAIN, SHOULD FALL ON EVERYBODY EQUALLY,

UNFORTUNATELY, IN THIS CASE, THE LAW HAS

NOT BEEN APPLIED EQUALLY. IN THIS CASE,

THE WIFE, THE PETITIONER HEREIN, KATHRYN

THOMPSON, LOST CUSTODY OF HER SON, DANNY

THOMPSON, BorRN APRIL 18, 1977, To HER HUS-

BAND, JOHN THOMPSON, BY VIRTUE OF ORDER OF

THE CrrcurT Court oF CoLes County, ILLINOIS.

WE SUBMIT THAT THE RECORD IS REPLETE WITH

MORAL TRANSGRESSIONS OF JOHN THOMPSON, THE

BOY'S FATHER, WE HAVE NOT BROUGHT THE

RECORD ON APPEAL TO THIS COURT FROM THE

SUPREME COURT OF ILLINOIS SINCE MOST OF THE

POINTS COVERED IN THIS PETITION CAN BE SHOWN

FROM THE OPINION APPEALED FROM, WE SUBMIT

FURTHER THE RECORD IS SILENT AS TO ANY MORAL

TRANSGRESSIONS ON THE PART OF THE MOTHER,

PETITIONER HEREIN, KATHRYN THOMPSON,

AMONG THE THINGS THAT THE FATHER, JOHN

-19-

THOMPSON, DID WHICH ARE IN THE RECORD, AND

RECITED IN THE ATTACHED OPINION OF THE SuP-

REME CourT OF ILLINOIS, MOST OF WHICH ARE

UNDISPUTED BY HIM, ARE AS FOLLOWS:

1, JOHN wrRonGFULLY REMOVED DANNY FROM

THE STATE OF MICHIGAN BY USING SELF-HELP,

FORCE, VIOLENCE, AND STEALTH. HIS INITIAL

CUSTODY OF THE CHILD WAS OBTAINED WITHOUT

DUE PROCESS OF LAW; WITH VIOLENCE AND FORCE,

BY TAKING THE CHILD PHYSICALLY FROM THE

CHILD'S MOTHER IN THE STATE OF MICHIGAN,

As SOON AS HE OBTAINED THE CHILD, THEN HE

RETURNED TO ILLINOIS, AND HAS HAD THE CHILD

EVER SINCE THAT TIME,

2. HE COMMITTED ADULTERY WHILE HE WAS

LIVING WITH HIS WIFE, KATHY, AND AFTER THEY

SEPARATED, HE LIVED IN OPEN AND NOTORIOUS

ADULTERY WITH HIS GIRLFRIEND, BETTY COFFMAN,

FOR APPROXIMATELY FIVE (5) MONTHS IN THE

CONTINUAL PRESENCE OF HIS SON, DANNY, HE

COMMITTED ADULTERY WITH HIS PRESENT WIFE,

oa

NORMA POTTER.

3, HE CRIMINALLY INTIMIDATED THE

wITNESS, BETTY COFFMAN, WHICH RESULTED IN

THE SWEARING OUT OF A WARRANT FOR HIS ARREST

BY HER AGAINST HIM IN WEST TERRE HAUTE,

INDIANA. THE INTIMIDATION CONSISTED OF HIS

THREATENING TO SHOW NUDE PICTURES OF HER TO

OTHER PEOPLE, AND OTHER VEILED UNSPECIFIED

THREATS, INCLUDING TRYING TO BEAT HIS WAY

THROUGH HER DOOR INTO HER HOUSE TO KEEP HER

FROM TESTIFYING AGAINST HIM ON THE CUSTODY

ISSUE,

4, HE FORGED HIS WIFE'S NAME TO THEIR

INCOME TAX RETURN; HE FORGED HER NAME TO

THE REFUND CHECK FROM THE IRS,

5, ACCORDING TO HIS EMPLOYER, H & F

TRUCKING, HIS LACK OF HONESTY AND HIS

TAKING VALUABLE ITEMS OF PERSONAL PROPERTY

WHICH BELONGED TO HIS EMPLOYER, WITHOUT THE

EMPLOYER’S PERMISSION, WERE THE REASONS

THAT THE EMPLOYER REFUSED TO REHIRE HIM

-21-

AFTER HE HAD QUIT,

6, HIS PREVIOUS RECORD OF VISITATION

WITH HIS CHILD BY A PREVIOUS MARRIAGE WAS

SOMETHING LESS THAN WHAT WOULD BE EXPECTED

OF A FATHER INTERESTED IN HIS CHILDREN; HE

HAD SEEN ONE OF THE CHILDREN, THE OLDER

“CHILD, NINE YEARS BEFORE, THE YOUNGER CHILD

HE HAD NEVER SEEN,

7, THERE IS EVIDENCE IN THE RECORD THAT

HE WAS FORCED BY CourT ORDER TO SUPPORT HIS

CHILDREN BY A PREVIOUS MARRIAGE,

8, ON A PETITION TO REOPEN THE CASE

TO OFFER ADDITIONAL EVIDENCE WHICH WAS

DENIED BY THE TRIAL CouRT, WHICH DENIAL WAS

AFFIRMED BY THE APPELLATE AND SUPREME CouRTS

OF ILLINOIS, IT WAS ALLEGED THAT AFTER THE

CUSTODY HEARING HAD ENDED, HE WAS FIRED

FROM HIS JOB WHERE HE WAS WORKING AT THE

TIME OF THE CUSTODY HEARING IN ST, LOUIS,

MISSOURI, THAT HE HAD TAKEN BANKRUPTCY,

AND THAT HE HAD MARRIED HIS PRESENT WIFE

-2?-

SOME FOUR (4) MONTHS BEFORE HE WAS FORMALLY

DIVORCED FROM KATHRYN THOMPSON IN THIS

DIVORCE PROCEEDING,

THE APPELLATE Court, 100 ILL. APP.

3p 1203, 57 Itt. Dec. 815, 429 NE 2p 932,

FOUND THAT THERE WAS EVIDENCE IN THE RECORD

THAT IT WAS IN THE BEST INTEREST OF THE CHILD

TO AWARD THE CHILD TO THE FATHER, AND DEALT

WITH THE JARRETT VS. JARRETT CASE, BY

DISTINGUISHING IT AND STATING ON PAGE FIVE

(5) OF ITS OPINION, SAID, “THIS CONDUCT,

ALTHOUGH NOT TO BE CONDONED, WAS NOT COMPAR-

ABLE TO THAT HELD TO BE SUFFICIENT OF ITSELF

TO JUSTIFY TO THE TRIAL COURT IN CHANGING

THE CUSTODY OF CHILDREN 7, 10 AND 12 YEARS

OF AGE IN JARRETT VS, JARRETT, 78 ILL.

2p 337 400 NE 2p 421, THERE THE CUSTODIAL

SPOUSE AND PARAMOUR COHABITED OPENLY AND

CONTINUOUSLY, AND THE CHILDREN WERE AWARE

OF THE INPROPRIETY OF THEIR RELATIONSHIP,”

THE SuPpREME CourRT OF ILLINOIS, HOWEVER,

-23-

IN ITS OPINION WHICH PROMPTED THIS PETITION

FOR WRIT OF CERTIORARI, AND WHICH OPINION

CAUSED THE VIOLATION OF KATHRYN THOMPSON’ s

CONSTITUTIONAL RIGHTS, ARGUED IN THIS

PETITION FOR WRIT OF CERTIORARI, TREATED

THE JARRETT VS. JARRETT CASE IN A DIFFERENT

LIGHT. THE THOMPSON oPINION IS FOUND AT 449

NE 2p 88 70 Itt. Dec, 214 96 ILL. 2D 67,

AND ALSO APPENDED TO THIS PETITION FOR WRIT

OF CERTIORARI. IN THAT CASE THE ILLINOIS

SUPREME COURT DID NOT DISTINGUISH THE

JARRETT VS. JARRETT DECISION, DID NOT

REVERSE IT OR OVER-RULE IT. ON PAGE 219

OF THE ILL. DEC. OPINION, THE CouRT SAID:

"THE RESPONDENT, KATHRYN THOMPSON,

ARGUES THAT JARRETT VS. JARRETT, 1979,

78 I.t,. 2p 337 36 Itt. Dec. 1, 400

NE 2p 421, STRONGLY SUPPORTS HER CON-

TENTION THAT SHE SHOULD BE AWARDED THE

CHILD. THE RESPONDENT ASSERTS THAT

THE APPELLATE COURT IGNORED THE MAN~

-24-

DATE OF JARRETT IN NOT ADDRESSING THE

MORAL TRANSGRESSIONS OF JOHN. JARRETT

vs, JARRETT, 1979, 78 Itt. 2p 337, 36

Itt. Dec. 1, 400 NE 2p 42], 1S AuTH-

ORITY FOR THE PROPOSITION THAT A CHILD

SHOULD BE PLACED WITH A PARENT WHO CAN

BEST SERVE THAT CHILD. THE JARRETT CASE

DOES NOT ESTABLISH A CONCLUSIVE PRE-

SUMPTION THAT, BECAUSE A CUSTODIAL PARENT

COHABITS WITH A MEMBER OF THE OPPOSITE

SEX, THE CHILD IS HARMED. NO SUCH

PRESUMPTION EXISTS IN THIS STATE.

THE CourT IN JARRETT INDICATED THAT A

CUSTODY AWARD IS NOT ARRIVED AT BY

PRESSING ONE LEVER AND MECHANICALLY

DENYING CUSTODY OF THE ONE PARENT;

RATHER ALL OF THE CIRCUMSTANCES MUST

BE CONSIDERED THAT AFFECT THE BEST

INTERESTS OF THE CHILD, JARRETT VS,

Jarrett 1979, 78 ILL. 2p 337, 344-45,

36 Itt. Dec, 1, 400 NE 2p 421, Itt.

-25-

Rev, Stat. 1979, Cu. 40, par, 602,”

WE SUBMIT THAT FOR PURPOSES OF THIS

APPEAL LEAVING THE JARRETT CASE UNREVERSED,

AND UNDISTINGUISHED FROM THIS CASE CREATES

A SITUATION IN THE STATE OF ILLINOIS WHERE

THE TRIAL JUDGE IN A CUSTODY CASE IS GOVERN-

ED BY NO LAW AT ALL,

WE SUBMIT FURTHER THAT THE PRESUMPTION

THAT, "BECAUSE A CUSTODIAL PARENT COHABITS

WITH A MEMBER OF THE OPPOSITE SEX, THE CHILD

IS HARMED,” IS NOT CONCLUSIVE IN DEALING

WITH THE ARGUMENT RAISED IN THIS PETITION,

DOES NOT REMEDY THE EVIL WHICH HAS ARISEN

BY THE ISSUANCE OF THE [THOMPSON OPINION BY

THE SuPREME CouRT OF ILLINOIS. THE FACT

OF THE MATTER IS THAT THE JARRETT OPINION

1S LEFT UNTOUCHED BY THE [THOMPSON OPINION

EXCEPT TO STATE THAT THE PRESUMPTION REFERRED

TO ABOVE IS NOT CONCLUSIVE, AND THE THOMPSON

OPINION, AND THE HOLDING THEREIN,IS DIA™

METRICALLY OPPOSED TO THE JARRETT DECISION,

-26-

INDEED IN THE JARRETT CASE, CUSTODY WAS

CHANGED BECAUSE OF MORAL INDISCRETIONS OF

ONE OF THE PARENTS AND FOR NO OTHER REASON,

AND IN THE THOMPSON OPINION THE CoUuRT COM-

PLETELY IGNORED THE MORAL INDISCRETIONS OF

THE PARENT TO WHOM THE CHILD WAS AWARDED,

WE SUBMIT THAT THE RULINGS IN THESE TWO

PARTICULAR CASES, THE JARRETT AND THE THOMP-

SON OPINION, ARE SO DIVERGENT THAT THEY

AMOUNT TO NO LAW AT ALL. STANDING AS THEY

DO, UNDISTURBED BY EACH OTHER, THEY PERMIT

THE TRIAL JUDGE TO DECIDE THESE CASES ON ANY

REASON, OR NO REASON AT ALL. HE COULD EAS~

ILY DECIDE THE CASE ON THE BASIS OF HIS BIAS,

PREJUDICE, WHIM OR CAPRICE. HIS DECISION

COULD BE ARBITRARY, AND AS LONG AS HE COMES

UP WITH THE MAGIC LANGUAGE AND FINDS THAT

THE CUSTODY IS AWARDED BECAUSE IT IS IN THE

BEST INTERESTS OF THE CHILD, THE UNDERLYING

FACTS OF THE CASE WOULD SEEM TO HAVE NO

EFFECT, IN DEALING WITH THIS SITUATION,

-2?]-

THERE IS NO LAW. THERE IS NO LAW FOR THE

PARENTS AND THE ATTORNEYS TO FOLLOW WITH

ANY CERTAINTY; THERE IS NO LAW WHEREBY A

TRIAL JUDGE CAN BE REVIEWED. HE CAN SAY

THAT MORAL INDISCRETION HARMS THE CHILD,

OR HE CAN SAY THAT IT DOES NOT HAR THE CHILD,

PROTECTION FROM ARBITRARY ACTION BY

THE STATE IS THE ESSENCE OF SUBSTANTIVE

puE Process; VoL, 16A Am, Jur. 2p, Con-

STITUTIONAL LAW SEC, 816 @ P. 978,

EQUAL PROTECTION OF THE LAWS MEANS THAT

NO PERSON, OR CLASS OF PERSONS, SHALL BE

DENIED THE SAME PROTECTION OF THE LAWS

WHICH IS ENJOYED BY THE PERSONS OR OTHER

CLASSES IN LIKE CIRCUMSTANCES IN THEIR

LIVES, LIBERTY AND PROPERTY. EQUAL PROTEC-

TION OF THE LAWS IS A PLEDGE OF PROTECTION

OF EQUAL LAWS; VoL. 16A, Am. Jur, 2D,

CONSTITUTIONAL LAW Sec, 737 @ P,. 774;

MISSOURI EX REL. GAINES vs. CANADA 305,

U.d. os G2 Le ED. Zoe OP. 225, 39 S.CT.

-28-

232 REH. DEN, 305 U.S, 676 83 L. ED, 43/7,

59S, CT, 356 AND CONFORMED TO 344 Mo,

1238, 131 SW 2p 217,

EQUAL PROTECTION OF THE LAWS AS PRO-

VIDED BY THE L4YTH AMENDMENT INCLUDES THE

JuDICIAL DIVISIONS OF THE STATE GOVERNMENTS

VoL. 16A Am. Jur. 2D, CONSTITUTIONAL LAW,

Sec, 742 @ Pp, 790; RARROWS VS. JACKSON 346

U.S. 249; 97 L. ED. 1586 @ 1594, 73S, Cr.

1031, REH. DEN, 346 U.S, 841; 98 L, ED,

361, 74S. Cr. 19,

EQUAL PROTECTION GUARANTEED BY THE

14TH AMENDMENT TO THE UNITED States CoN-

STITUTION PROTECTS AGAINST DISPARITY IN

TREATMENT BY A STATE BETWEEN CLASSES OF

INDIVIDUALS WHOSE SITUATIONS ARE ARGUABLY

INDISTINGUISHABLE; VoL, 16A Am Jur. 2p,

CoNSTITUTIONAL LAW Sec, 740 A P, 782,

THERE IS NOTHING A PARENT CAN DO TO

PROTECT HIMSELF OR HERSELF IN A CUSTODY

BATTLE WHERE THE LAW REMAINS SO DIVERGENT

THAT INDEED IT AMOUNTS TO NO LAW AT ALL,

-39-

THIS IS, WE SUBMIT, A SUBJECTIVE TEST OF

THE TRIAL JUDGE, THERE IS NO WAY TO MEA-

SURE WHAT HE HAS DONE AND NOT DONE IN REACH™-

ING HIS DECISION. INDEED IT AMOUNTS TO A

GOVERNMENT OF MEN AND NOT LAWS IN THE

AREA OF AWARDING CUSTODY IN THE STATE OF

ILLINOIS, THE PARENT HAS NO WAY OF KNOWING

WHAT THEY SHOULD OR SHOULD NOT DO TO PRO-

TECT THEMSELVES IN A CUSTODY BATTLE,

INDEED THE COMPLETE IGNORING OF THE ACTIONS

OF THE PARENTS, THAT IS, THE MISDEEDS AND

MISOMISSIONS, IN EFFECT, DENIES THE PARENT

LOSING CUSTODY OF DUE PROCESS OF LAW,

SINCE THAT PARENT HAS A PROPERTY RIGHT IN

THE CHILD INVOLVED, THERE HAS TO BE SOME

MEASURE OF THE RIGHT TO HAVE CUSTODY OF

THE CHILD BASED UPON THE PARENTS ACTIONS,

DEEDS, OR MISDEEDS, OR MISOMISSIONS, OTHER-

WISE, WE SUBMIT, THE PARENT IS DENIED DUE

PROCESS OF LAW UNDER THE FOURTEENTH AMEND-

MENT OF THE UNITED STATES CONSTITUTION,

-30-

AND IS DENIED EQUAL PROTECTION OF THE LAW,

THE SuPREME CourRT ON PAGE 219 OF ITS

THOMPSON OPINION IN THE ILLINOIS DECISIONS

OPINION SAID, “THE CouRT IN JARRETT INDICATED

THAT A CUSTODY AWARD IS NOT ARRIVED AT

BY PRESSING ONE LEVER, AND MECHANICALLY

DENYING CUSTODY TO ONE PARENT; RATHER ALL

THE CIRCUMSTANCES MUST BE CONSIDERED THAT

EFFECT THE BEST INTERESTS OF THE CHILD.”

WE BELIEVE THAT WHAT THE CouRT DID

IN THOMPSON WAS JUST EXACTLY THE OPPOSITE

OF WHAT IT SAID IT DID IN JARRETT. WE

SUBMIT THAT IN THE THOMPSON CASE IT PRESSED

ONE LEVER, AND THAT LEVER IS THE FINDING

BY THE TRIAL JUDGE THAT IT IS IN THE BEST

INTERESTS OF THE CHILD TO BE AWARDED TO

HIS FATHER, AND COMPLETELY IGNORING ALL

UNDERLYING CIRCUMSTANCES THAT AFFECT THE

BEST INTERESTS OF THE CHILD,

THE FOURTEENTH AMENDMENT OF THE UNITED

STATES CONSTITUTION GUARANTEES ALL SUB~

-3]-

JECTS OF THE UNITED STATES, INCLUDING

KATHRYN THOMPSON, To BE TREATED EQUALLY

UNDER THE LAW, AND NOT TO BE DENIED HER

PROPERTY WITHOUT DUE PROCESS OF LAW,

WE SUBMIT THAT SHE WAS DENIED HER PRO-

PERTY WITHOUT DUE PROCESS OF LAW, THAT

PROPERTY BEING HER SON, DANNY, FOR REASON

THAT INDEED THERE IS NO SUBSTANTIVE LAW

GOVERNING THE AWARDING OF CUSTODY IN THE

STATE OF ILLINOIS, IN LIGHT OF LEAVING

THE JARRETT AND THE THOMPSON CASES UNDIS™-

TURBED SIDE BY SIDE. THERE IS NO LAW FOR

A TRIAL JUDGE TO FOLLOW. THERE IS NO

LAW FOR THE PARENT TO FOLLOW. IF IN THE

ONE CASE, THE JARRETT CASE, THE PARENT CAN

LOSE CUSTODY FOR MORAL INDISCRETIONS, THEN

THE NEXT CASE THE PARENT, IN THOMPSON, DOES

NOT LOSE CUSTODY,THEN INDEED THERE IS NO

EQUAL PROTECTION OF THE LAWS FOR BOTH

PARENTS, AND ESPECIALLY FOR THE PARENT LOS

ING CUSTODY,

-32-

CONCLUSION

KATHRYN THOMPSON COMPLAINS TO THIS CoURT

THAT SHE HAS NOT RECEIVED DUE PROCESS OF

LAW, AND EQUAL PROTECTION OF THE LAW FROM

THE CouRTS OF THE STATE OF ILLINOIS IN THE

LOSS OF THE CUSTODY OF HER SON, DANNY,

WHICH RIGHTS ARE GUARANTEED TO HER BY THE

14TH AMENDMENT TO THE UNITED STATES Con-

STITUTION,

SHE SUBMITS THAT THIS CASE WHEN COM-

PARED TO THE JARRETT VS. JARRETT OPINION

CREATES A SITUATION OF NO LAW IN DETERMIN™

ING WHEN AND IF MORAL INDISCRETION OF A

PARENT WILL AFFECT THE AWARD OF CUSTODY

OF A CHILD,

SHE STATES THAT SHE HAS LOST CUSTODY

OF HER SON BASED ON THE WHIM, CAPRICE,

AND ARBITRARY ACTION OF THE TRIAL JUDGE,

AND THEREFORE HER CONSTITUTIONAL RIGHTS

HAVE BEEN VIOLATED,

-33-

SHE ASKS THAT THIS COURT WILL GRANT

HER PETITION FOR WRIT OF CERTIORARI SO

THAT HER CONSTITUTIONAL RIGHTS CAN BE

GRANTED TO HER BY THIS COURT, AND THAT

CUSTODY OF HER SON, DANNY, BE AWARDED TO

HER,

RESPECTFULLY SUBMITTED,

KATHRYN THOMPSON

By: THOMAS J. LOGUE, HER ATTORNE\

GLENN & LOGUE, AtTorNEys

901 CHARLESTON AVENUE

MATTOON, ILLINOIS 61938

ATTORNEYS FOR KATHRYN

THOMPSON, PETITIONER,

-34-

APPENDIX

In RE MARRIAGE OF JOHN DELANCE THOMPSON,

APPELLEE, AND KATHRYN MAE THOMPSON,

APPELLANT,

JUSTICE CLARK DELIVERED THE OPINION OF THE

COURT:

AN ORDER WAS ENTERED IN THE CIRCUIT

CourT oF CoLes County on May 6, 1981, DISSOLV-

ING THE MARRIAGE OF KATHRYN MAE THOMPSON

TO JOHN DELANCE THOMPSON. KATHRYN THOMP-

SON APPEALED CERTAIN PORTIONS OF THE ORDER

AND ALSO ASSERTED THAT THE COURT SHOULD HAVE

DEFERRED JURISDICTION TO A TRIAL COURT IN

THE STATE OF MICHIGAN. IN HER APPEAL

KATHRYN CONTENDED THAT THE AWARD OF CUSTODY

WAS CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE, THE DIVISION OF PROPERTY WAS ERRON-

EOUS, THE COURT ERRED IN SUSTAINING THE

OBJECTION TO HER OFFER OF PROOF OF PETI-

TIONER’S REPUTATION, AND THE TRIAL COURT ERRED

IN REFUSING TO ALLOW HER TO REOPEN HER CASE,

THE APPELLATE COURT FOUND THAT (A)

THE CircurlT Court oF CoLes COUNTY ACTED

-35-

PROPERLY IN REFUSING TO DEFER JURISDICTION

TO A TRIAL IN THE STATE OF MICHIGAN; (B)

THE AWARD OF PERMANENT CUSTODY TO JOHN

DELANCE THOMPSON WAS NOT CONTRARY TO THE

MANIFEST WEIGHT OF THE EVIDENCE OR A BREACH

OF DISCRETION; (C) THERE WAS NO ERROR IN

THE DIVISION OF PROPERTY EXCEPT FOR AN

APPARENT INADVERTENT OMISSION OF $371 THAT

WAS DUE KATHRYN MAE THOMPSON; (D) THE TRIAL

COURT PROPERLY SUSTAINED THE OBJECTION TO

THE RESPONDENT'S OFFER OF PROOF OF PETI-

TIONER’S REPUTATION; AND (3) THE TRIAL

COURT DID NOT ABUSE ITS DISCRETION IN REFUS~

ING TO REOPEN THE CASE, 100 ILL. App. 3D

1203 (RuLe 23 ORDER),

JOHN AND KATHRYN THOMPSON WERE MARRIED

ON NovemBerR 16, 1973 IN PonTIAC, MICHIGAN,

THEREAFTER, JOHN THOMPSON TOOK A POSITION

WITH McBripe’s Express IN DECATUR, ILLINOIS,

JOHN AND KATHRYN WERE LIVING IN DECATUR ON

Aprit 18, 1977, WHEN THEIR ONLY CHILD, DANIEL,

-36-

WAS BORN, IN AucusTt oF 1977, WHEN DANIEL

WAS APPROXIMATELY FOUR MONTHS OLD, THE FAMILY

MOVED TO LERNA, ILLINOIS, WHERE JOHN ACCEPT~

ED A POSITION WITH THE H & F TrRuckING Com-

PANY,

On NovemBer 30, 1979, JoHN TOLD

KATHRYN THAT HE HAD TO LEAVE TOWN ON RBUS-

INESS, WHEN IN FACT HE INTENDED TO SPEND

THE NIGHT IN COLLINSVILLE, ILLINOIS, WITH

A FEMALE BUSINESS ASSOCIATE. KATHRYN WAS

AWARE OF WHAT ACTUALLY OCCURRED AND ON

DecemBerR 1, 1979, sHe LEFT DECATUR WITH DAN-

IEL AND LEFT A NOTE INDICATING THAT SHE WAS

RETURNING TO HER PARENT’S HOME BECAUSE HER

FATHER WAS ILL,

JOHN CONSTANTLY CALLED TO INQUIRE

ABOUT KATHRYN AND DANIEL. KATHRYN AT FIRST

DENIED THERE WERE ANY MARITAL PROBLEMS, AND

SHE ATTEMPTED TO CONCEAL HER WHEREABOUTS AND

THE WHEREABOUTS OF THE CHILD,

On Decemper 7, 1979, JOHN FILED A

-3/7-

PETITION IN THE CIRCUIT COURT OF COLES

COUNTY FOR DISSOLUTION OF MARRIAGE AND FOR

TEMPORARY CUSTODY OF THE CHILD, IN THE

PETITION IT WAS ALLEGED THAT THE CHILD HAD

MEDICAL PROBLEMS AND IT WAS IN THE BEST

INTEREST OF DANIEL THAT CUSTODY BE AWARDED

TO THE FATHER, THE PETITION WAS ALLOWED,

AND AN ORDER WAS ENTERED ON J)ECEMBER 7,

1979, GRANTING TEMPORARY CUSTODY TO THE

FATHER,

JOHN CONTINUED TO CALL ON A REGULAR

BASIS, TRYING TO CONTACT HIS WIFE OR HER

PARENTS, IN ORDER TO DETERMINE THE CONDI-

TION AND WHEREABOUTS OF HIS SON. ON DECEM-

BER 10, 1979, JOHN RETAINED THE SERVICES

OF AN INVESTIGATIVE AGENCY,

FOLLOWING A SHORT STAY AT HER PARENTS’

HOME KATHRYN MOVED WITH DANIEL TO A HOME FOR

BATTERED WOMEN IN SAGINAW, MICHIGAN, ON

DeceEmMBER 12, 1979, KATHRYN FILED FOR AND

WAS GRANTED TEMPORARY CUSTODY OF HER SON

- 38-

IN THE CIRCUIT CouRT FOR SAGINAW COUNTY IN

THE STATE OF MICHIGAN,

On DecemBer 30, 1979 THE INVESTIGATOR

JOHN HAD HIRED NOTIFIED JOHN THAT HE HAD

LOCATED KATHRYN AND DANIEL. JOHN ARRANGED

TO FLY TO MICHIGAN, WITH THE CourT ORDER IN

HAND, TO OBTAIN PHYSICAL CUSTODY OF HIS SON.

JOHN FORCIBLY ABDUCTED HIS SON FROM KATHRYN

ON A STREET IN SAGINAW, MICHIGAN, PLACED

DANIEL IN THE DETECTIVE’S CAR AND PROCEEDED

TO THE INVESTIGATOR’S HOME. AT THAT TIME HE

CALLED THE SAGINAW POLICE DEPARTMENT AS WELL

AS KATHRYN'S ATTORNEY IN MICHIGAN TO NOTIFY

THEM OF THE SITUATION. JOHN DENIES THAT HE

KNEW THEN THAT THERE WAS A CourT ORDER GIV-

ING CUSTODY OF DANNY TO KATHRYN. THE INVEST-

IGATOR INDICATED THAT HIS EMPLOYEES HAD

ATTEMPTED TO DISCOVER IF THERE WAS A COURT

PROCEEDING PENDING CONCERNING CUSTODY, BUT

THAT THEY HAD FAILED TO DISCOVER ANYTHING,

THE INVESTIGATOR, ROBERT SWARTWOOD,

-39-

TESTIFIED AS TO DANNY’S PHYSICAL CONDITION

AT THE TIME THE CHILD WAS PICKED UP IN SAGI-

NAW,

AccorDING TO Mr, SwartTwooD, DANNY WAS

WITHOUT MITTENS, HIS CHEEKS WERE WINDBURNED,

HE HAD A COLD WITH A DEEP COUGH, HE HAD A

SMALL BRUISE UNDER ONE EYE, AND THAT EYE

WAS CONSTANTLY TEARING. THE INVESTIGATOR’S

WIFE, WHO WAS PRESENT WHEN DANNY WAS FOUND,

TESTIFIED THAT SHE ALSO EXAMINED DANNY AT

THE TIME AND FOUND CHAPPED LIPS, TEARING

IN ONE EYE, AND A RUNNY NOSE,

AFTER JOHN TOOK DANNY FROM KATHRYN,

HE TRAVELED BACK TO THE FAMILY HOME IN

LERNA, ILLINOIS. UPON ARRIVING BACK IN

LERNA, JOHN TOOK DANNY TO SEE A DOCTOR ON

THREE SUCCESSIVE DAYS; ANTIBIOTICS AND EAR-

DROPS WERE PRESCRIBED. ACCORDING TO JOHN,

DANNY'S RIGHT EAR WAS INFLAMED, HIS LEFT

EAR WAS FULL OF WAX, AND WHEN SPOKEN TO BY

HIS FATHER HE HAD TROUBLE HEARING HIM,

-40-

FURTHER EAR SURGERY WAS REQUIRED IN MARCH

oF 1980,

FOLLOWING THE FATHER’S AND SON’S

ARRIVAL BACK IN LERNA, JOHN WENT BACK TO

WORK FOR H & F TRUCKING CoMPANY. HE AND

DANNY CONTINUED TO LIVE IN THE SAME HOME IN

LERNA THAT HAD BEEN THE MARITAL RESIDENCE,

In JANUARY OF 1980, JOHN BEGAN SEEING

A WOMAN BY THE NAME OF BETTY CoFFMAN. Ms,

COFFMAN AND JOHN SAW EACH OTHER REGULARLY

FOR THE NEXT FIVE MONTHS, WITH Ms, COFFMAN

FREQUENTLY SPENDING WEEKENDS AT JOHN’S HOME,

DuPING TWO OF THOSE MONTHS JOHN ALSO HAD A

COUSIN BY THE NAME OF KENNETH DOLSON LIV-

ING IN THE HOUSE. Ms, COFFMAN TESTIFIED THAT

DURING HER WEEKEND VISITS SHE SLEPT WITH

JOHN, AND THAT SHE TOOK THE SAME CARE OF

DANNY THAT SHE TOOK WITH HER OWN TWO CHILD-

REN. Ms, COFFMAN INDICATED THAT DANNY

ALWAYS HAD THE SNIFFLES, COUGHED FREQUENTLY

AND HAD EAR TROUBLE. SHE FURTHER TESTIFIED

-4j-

THAT SHE WOULD CHANGE HIS DIAPERS, COOK HIS

MEALS, AND CHANGE AND WASH HIS CLOTHES,

Ms, COFFMAN TESTIFIED ON CROSS-EXAMINATION

THAT JOHN WAS A GOOD, LOVING FATHER WHO

LOOKED AFTER THE MEDICAL AND OTHER NEEDS OF

HIS CHILD, SHE ALSO TESTIFIED THAT JOHN AND

SHE TALKED ON SEVERAL OCCASIONS PRIOR TO

THE CUSTODY HEARING AND ON ONE SUCH OCCA-

SION, ACCORDING TO Ms, CoFFMAN, JOHN REMINDED

HER THAT “I (JOHN) HAVE SOME PICTURES AND

DON’T FORGET THERE IS A CUSTODY HEARING COM-

ING UP.” Ms, COFFMAN INDICATED THAT THE

PICTURES JOHN WAS REFERRING TO WERE NUDE

PICTURES OF Ms, COFFMAN THAT JOHN HAD TAKEN

WHEN THEY WERE SEEING ONE ANOTHER,

Ms, COFFMAN ALSO TESTIFIED THAT JOHN

CAME TO HER HOUSE IN WEST TERRE HAUTE,

INDIANA, ONE EVENING AND THAT SHE WOULD

NOT OPEN THE DOOR, JOHN SAID HE WANTED TO

TALK WITH HER. SHE WOULD NOT TALK TO HIM

BECAUSE SHE WAS AFRAID OF HIM. JOHN SAID

-42-

THAT HE WOULD BE BACK AND THAT SHE HAD NOT

SEEN THE LAST OF HIM. Ms, COFFMAN SWORE

OUT A WARRANT FOR JOHN'S ARREST WHICH IS

STILL PENDING; JOHN DID NOT RETURN. Ms,

COFFMAN INDICATED THAT SHE BROKE OFF THE

RELATIONSHIP WITH JOHN BECAUSE HE WAS SEE-

ING ANOTHER WOMAN,

SOON AFTER JOHN AND DANNY RETURNED TO

THE HOME IN LERNA, JOHN MADE ARRANGEMENTS

FOR DANNY’S DAY CARE AT THE HOME OF VIRGINIA

SONS,

Mrs, SONS TESTIFIED THAT WHEN SHE

FIRST MET DANNY HE WAS INSECURE, CLINGING

AND SICKLY, SHE ALSO TESTIFIED THAT HE

TIRED EASILY AND HAD COLDS, WHICH INCLUDED

EAR INFECTIONS. SHE FURTHER FOUND THAT HE

WAS UNDISCIPLINED, NOT POTTY-TRAINED, AND

HAD POOR EATING HABITS, SHE FELT HE WAS

OVER-WEIGHT, WITHDRAWN AND IN NEED OF

SPECIAL ATTENTION. HER HUSBAND, GERALD

SONS, TESTIFIED THAT WHEN HE FIRST SAW

-43-

DANNY HE WAS INSECURE, SICKLY, CRIED A LOT

AND WAS A PICKY EATER, MRS. SONS FELT THAT

SHE SAW DRAMATIC CHANGES IN DANNY WITHIN

THE FIRST SIX MONTHS THAT JOHN HAD DANNY,

SHE TESTIFIED THAT DANNY WAS LESS SUSCEP-

TIBLE TO COLDS, THAT HE DID NOT TIRE AS

EASILY, AND THAT HIS EAR INFECTIONS CLEARED

UP. SHE OBSERVED HIM BECOME COMFORTABLE,

MORE STABLE AND SECURE, SHE OBSERVED A HAPPY

LITTLE BOY, GLAD TO SEE HIS FATHER, MRS,

SONS TESTIFIED THAT JOHN'S ATTITUDE TOWARDS

HIS SON WAS VERY GOOD, THAT HE (JOHN) WAS

A CONCERNED, RESPONSIVE PARENT, AND THAT

AS A RESULT THE CHILD SLIMMED DOWN AND

APPEARED TO BE VERY CONTENT,

VIRGINIA’S HUSBAND, GERALD Sons,

TESTIFIED THAT, DURING THE PERIOD OF TIME

IN 1980 WHEN HE WAS AROUND THE BOY, DANNY'S

EMOTIONAL CONDITION IMPROVED AND HE WAS WELL

ADJUSTED. MR. SONS FELT THAT JOHN WAS CON-

SCIENTIOUS AND OBSERVED JOHN AND DANNY

-44-

KISSING AND HUGGING ON MANY OCCASIONS,

KATHRYN'S FIRST EFFORT TO CONTACT

DANNY OCCURRED ON JANUARY 25, 1980, ALMOST

FOUR WEEKS AFTER JOHN HAD BROUGHT HIM BACK

HOME. KATHRYN TALKED TO DANNY ON THE TELE-

PHONE ON MarcH 9, 1980, KATHRYN ADMITTED,

UNDER CROSS-EXAMINATION, THAT SHE DID NOT

INQUIRE ABOUT DANNY BETWEEN JANUARY 25, 1980,

AND MarcH 9, 1980, KATHRYN DID NOT MAKE ANY

DIRECT CALLS TO JOHN OR TO DANNY OR VISIT

DANNY BETWEEN MARCH 9, 1980 AND A VISITATION

WHICH OCCURRED IN NovemBer OF 1980,

Around EASTER OF 1980, KATHRYN SENT AN

EASTER CARD TO DANNY AND AGAIN AROUND HIS

BIRTHDAY IN APRIL SHE SENT A BIRTHDAY CARD

AND DOLL. SHE SENT ANOTHER CARD IN JULY OF

1980, THE FINAL WRITTEN COMMUNICATION

OCCURRED NEAR THANKSGIVING OF 1980 WHEN SHE

SENT A THANKSGIVING CARD,

On Jucy 1, 1980, KATHRYN APPEARED IN

THE CIRCUIT COURT OF COLES COUNTY AND TESTIFIED

-45-

FOR THE PURPOSE OF OBTAINING AN ORDER FOR A

PRELIMINARY INJUNCTION AGAINST JOHN DISPOS-

ING OF ANY PROPERTY AND, WHILE IN COLES

CouNTY, MADE NO EFFORT TO CONTACT DANNY,

KATHRYN ASSERTS THAT SHE DID NOT CON-

TACT DANNY BECAUSE HER PREVIOUS ATTORNEY

ADVISED HER NOT TO SPEAK WITH JOHN. DANNY

WAS NOT CAPABLE OF PICKING UP THE PHONE AT

THAT TIME, KATHRYN ALSO ASSERTS THAT SHE

WAS AFRAID OF JOHN AND, THEREFORE, DID NOT

VISIT DANNY AS OFTEN AS SHE WOULD HAVE LIKED,

JESSE THOMPSON WAS A FRIEND AND CO-

WORKER OF JOHN THOMPSON AT THE H & F TRUCKING

ComPANY, HE TESTIFIED THAT HE SAW A SIGN-

IFICANT IMPROVEMENT IN DANNY'S HEALTH AND

THAT HE (JESSE) OBSERVED A VERY WARM AND

LOVING FATHER-SON RELATIONSHIP,

Mr. JAMES COLLIN, A CONTRACTOR WHO WAS

WORKING ON RENOVATIONS IN JOHN’S HOME,

TESTIFIED THAT DURING THAT SPRING AND SUMMER

oF 1980 HE OBSERVED DANNY AS A NORMAL CHILD

-46-

AND THAT JANNY AND JOHN OFTEN WOULD SIT AND

PLAY THE BANJO AND GAMES TOGETHER AND THAT

THEY SEEMED TO HAVE A GOOD RELATIONSHIP,

KATHY BEAN, OPERATOR OF A LOCAL RESTAUR-

ANT IN MATTOON, CAME TO KNOW JOHN AND DANNY

THOMPSON AS CUSTOMERS, SHE TESTIFIED THAT

DURING THAT SPRING AND SUMMER SHE OBSERVED

A CHILD WHO BECAME MORE SURE OF HIMSELF AS

TIME WENT ON, AND THAT HE SEEMED POLITE, CLEAN

AND WELL ADJUSTED. SHE DESCRIBED HIM AS “A

VERY ROBUST, SHINING LITTLE BOY.” SHE BELIEVED

THAT JOHN WAS CRAZY ABOUT DANNY,

REVEREND RICHARD ANDERSON CAME TO KNOW

JOHN AND DANNY THROUGH THE LOXA PRESBYTERIAN

CHURCH IN MATTOON, ACCORDING TO REV. ANDER-

SON THEY ATTENDED SERVICES FROM JANUARY

THROUGH JUNE OF 1980, AND HE FELT JOHN WAS

CONSCIENTIOUS ABOUT DANNY’S PROPER RELIGIOUS

TRAINING AND THAT JOHN AND DANNY EXHIBITED A

SINCERE AND CARING ATTITUDE TOWARDS ONE

ANOTHER,

-47-

ONE NEIGHBOR WHO KNEW JOHN AND KATHRYN

WHEN THEY WERE RESIDING TOGETHER IN LERNA

TESTIFIED THAT KATHRYN HAD TOLD HER ON ONE

OCCASION THAT SHE WOULD BE GLAD WHEN DANNY

GOT BIGGER BECAUSE IT WAS HARD FOR HER TO

COPE WITH A LITTLE BABY. JOHN ALSO TESTIFIED

AS TO KATHRYN’S SUPERVISION OF THE CHILD,

ACCORDING TO JOHN, ON ONE OCCASION HE FOUND

DANIEL UNSUPERVISED IN THE YARD PLAYING WITH

SCISSORS, AND ON ANOTHER OCCASION UNATTENDED

IN THE BATHTUB. JOHN ALSO TESTIFIED THAT

KATHRYN WOULD PUNISH DANNY FOR CRYING,

BARBARA HART TESTIFIED THAT ON ONE OCCA-

SION DANNY WAS LEFT CRYING FOR ABOUT 45

MINUTES UNTIL HE FINALLY FELL ASLEEP. Ms,

HART ALSO INDICATED THAT DURING THE SUMMER

AND EARLY FALL OF 1979, DANNY WAS OVERWROUGHT,

WORE ILL-FITTING CLOTHING AND IMPROPERLY

PINNED DIAPERS, AND ATE FOOD NOT PROPERLY

PREPARED,

Ms, HART ALSO TESTIFIED AS TO DANNY’S

-Ug-

CONDITION WHEN JOHN AND DANNY RETURNED TO

LERNA. Ms, HART OBSERVED A CHANGE IN DANNY,

SHE TESTIFIED THAT HE CAME OUT OF HIS SHELL,

THAT HIS CLOTHES FIT, AND THAT HE WAS PROPER-

LY DRESSED,

JOHN TESTIFIED THAT HE CONTINUED HIS

EMPLOYMENT WITH H & F TRUCKING UNTIL JUNE OF

1980 AT WHICH TIME HE ACCEPTED EMPLOYMENT

WITH ADVANCE TRANSPORT IN EFFINGHAM, ILLINOIS,

THERE WAS ALSO TESTIMONY FROM JOHN'S EMPLOYER

AT H & F TRUCKING THAT, WHILE JOHN RESIGNED,

HE (JOHN) SOUGHT TO RETURN TO H & F TRUCKING

BEFORE HE ACCEPTED EMPLOYMENT WITH ADVANCE

TRANSPORT, BUT HE WAS NOT REHIRED. THE

EMPLOYER AT H & F TRUCKING TESTIFIED THAT

JOHN TOOK VARIOUS SALVAGE ITEMS AND DISTRI-

BUTED THEM AMONGST HIS FRIENDS,

HE WORKED FOR ADVANCE TRANSPORT UNTIL

Aucust oF 1980 AND, THEREAFTER, BEGAN EMPLOY-

MENT WITH CoMPLETE AuTo TRANSPORT IN OCTOBER,

WHERE HE WAS EMPLOYED AT THE TIME OF THE HEAR™

-1Q-

ING,

AT THE TIME OF THE HEARING, JOHN AND

DANNY LIVED IN HIGHLAND, ILLINOIS, IN A TEN-

YEAR-OLD, THREE-BEDROOM HOME ON APPROXIMATELY

ONE ACRE OF LAND. ACCORDING TO JOHN, A

HOSPITAL AND DAYCARE CENTER WERE NEARBY AND

HE HAD MADE ARRANGEMENTS FOR DANNY TO BEGIN

KINDERGARTEN. JOHN TESTIFIED THAT HE HAS

SEEN TO THE PROPER RELIGIOUS EDUCATION OF

DANNY,

ACCORDING TO JOHN HE HAS SPENT ALL OF

HIS TIME, WHEN NOT AT WORK, WITH DANNY.

THE APPELLATE CourT, IN A RULE 23 ORDER,

FOUND THAT BECAUSE THE COUNSEL FOR KATHRYN

DID NOT RAISE THE ISSUE TIMELY, THE ISSUE OF

WHETHER THE CIRCUIT COURT OF COLES COUNTY

HAD IMPROPERLY EXERCISED ITS JURISDICTION

HAD BEEN WAIVED, WHILE WE DO NOT DEEM A

QUESTION OF JURISDICTION TO BE WAIVED, WE

DO FIND THAT THE CIRCUIT COURT ACTED PROPERLY

IN REJECTING AN UNTIMELY REQUEST FOR DEFERRAL

-50-

TO A TRIAL COURT IN MICHIGAN,

COUNSEL DID NOT ASK THE CIRCUIT COURT

TO CONSIDER DEFERRING THE CASE UNTIL CLOSING

ARGUMENTS WERE BEING MADE ON JANUARY 21,

1981, MORE THAN A YEAR AFTER THE CASE HAD

BEGUN,

THE UNIFORM CHILD Custopy JURISDICTION

Act (Itt. Rev. Stat. 1979, cH. 40, par, 2101

ET SEQ.) PROVIDES GUIDELINES TO AVOID CONFLICT

AND COMPETITION WITH COURTS OF OTHER STATES

IN DETERMINING MATTERS OF CHILD CUSTODY,

WE AGREE WITH THE APPELLATE COURT THAT ONE

OF THE PURPOSES OF THE ACT IS TO ASSURE THAT

LITIGATION CONCERNING THE CUSTODY OF A CHILD

TAKES PLACE IN THE STATE IN WHICH THE CHILD

AND HIS OR HER FAMILY HAVE THE CLOSEST CON-

NECTION. ANOTHER IS TO DETER ABDUCTIONS

AND OTHER UNILATERAL REMOVALS OF CHILDREN

UNDERTAKEN TO OBTAIN CUSTODY AWARDS, ILL,

Rev. Stat, 1979, cH. 40, pars, 2102(3), (5),

SecTION 4(A)(1) oF THE AcT (ILL. REV,

-51-

STAT, 1979, cH. 40, PAR. 2104(A)(1)) PRovIDES

THAT THE CIRCUIT COURTS HAVE “JURISDICTION”

TO MAKE A CHILD-CUSTODY DETERMINATION IF THE

STATE IS THE HOME STATE OF THE CHILD AT THE

TIME OF THE COMMENCEMENT OF THE PROCEEDING

OR HAD BEEN THE CHILD’S HOME STATE WITHIN

SIX MONTHS BEFORE COMMENCEMENT OF THE PRO-

CEEDING., HOWEVER, SECTION 9 ALSO PROVIDES

THAT “(I]F THE PETITIONER FOR AN INITIAL

JUDGMENT HAS WRONGFULLY TAKEN THE CHILD FROM

ANOTHER STATE OR HAS ENGAGED IN SIMILAR

REPREHENSIBLE CONDUCT THE COURT MAY DECLINE

TO EXERCISE JURISDICTION IF THIS IS JUST AND

PROPER UNDER THE CIRCUMSTANCES,” (EMPHASIS

ADDED.) ILL, REV. STAT, 1979, cH, 40, PAR,

2109(a),

WE STRONGLY DISAPPROVE OF JOHN’S CON-

DUCT IN FORCIBLY OBTAINING PHYSICAL CUSTODY

OF DANNY FROM KATHRYN IN MICHIGAN AND RETURN-

ING HIM TO ILLINOIS. JOHN MAINTAINS HE USED

DILIGENCE TO DETERMINE WHETHER ANY MICHIGAN

-52-

COURT HAD RULED ON THE CHILD'S CUSTODY,

REGARDLESS, LIKE THE APPELLATE COURT, WE

DEEM JOHN'S ACTIONS TO BE THE TYPE OF CONDUCT

SECTION 9(A) WAS DESIGNED TO PREVENT. THE

AGGRIEVED SPOUSE IS ABLE TO REQUEST THE FORUM

STATE TO DECLINE TO EXERCISE JURISDICTION SO

THAT THE WRONGFUL OBTAINING OF CUSTODY WILL

NOT DETERMINE THE FORUM FOR THE DECISION,

HAD COUNSEL FOR KATHRYN MADE SUCH A REQUEST

HERE, BEFORE THE COURT HEARD THE CASE ON

THE MERITS IN ITS ENTIRETY, SHE MAY HAVE HAD

A VALID CLAIM. HOWEVER, NO SUCH REQUEST WAS

MADE IN THE TRIAL COURT UNTIL THE CLOSING

ARGUMENTS ON JANUARY 21, 1981, MORE THAN A

YEAR LATER,

WE THEREFORE FIND THAT BECAUSE COUNSEL

FOR KATHRYN FAILED TO REQUEST DEFERENCE TO THE

MICHIGAN CouRTS PRIOR TO THE COMMENCEMENT OF

THIS PROCEEDING, AND SINCE THE MERITS OF THIS

CASE HAD BEEN HEARD PRIOR TO THE REQUEST

THAT DEFERENCE BE ENTERTAINED BY THE CIRCUIT

-53-

Court oF CoLes County, THE CouRT PROPERLY

REJECTED SUCH A CONSIDERATION,

WE NOW ASK IF THE CUSTODY AWARD BY

THE TRIAL JUDGE WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE, WE HAVE RECITED AT

LENGTH THE TESTIMONY AT TRIAL, AND WE FEEL

THAT A LENGTHY COMMENTARY ON THAT TESTIMONY

IS NOT CALLED FOR HERE,

THE RESPONDENT, KATHRYN THOMPSON,

ARGUES THAT JARRETT V. JARRETT (1979), 78

ILL, 2D 337, STRONGLY SUPPORTS HER CONTENTION

THAT SHE SHOULD BE AWARDED THE CHILD, THE

RESPONDENT ASSERTS THAT THE APPELLATE CouRT

IGNORED THE MANDATE OF JARRETT IN NOT ADDRESS-~

ING THE “MORAL TRANSGRESSIONS” OF JOHN,

JARRETT _V, JARRETT (1979), 78 ILL. 2D 33/7,

IS AUTHORITY FOR THE PROPOSITION THAT A CHILD

SHOULD BE PLACED WITH THE PARENT WHO CAN

BEST SERVE THAT CHILD. THE JARRETT CASE

DOES NOT ESTABLISH A CONCLUSIVE PRESUMPTION

THAT, BECAUSE A CUSTODIAL PARENT COHABITATES

-54-

WITH A MEMBER OF THE OPPOSITE SEX, THE CHILD

IS HARMED. NO SUCH PRESUMPTION EXISTS IN

THIS STATE. THE CouRT IN JARRETT INDICATED

THAT A CUSTODY AWARD IS NOT ARRIVED AT BY

PRESSING ONE LEVER AND MECHANICALLY DENYING

CUSTODY TO ONE PARENT; RATHER ALL OF THE

CIRCUMSTANCES MUST BE CONSIDERED THAT AFFECT

THE BEST INTERESTS OF THE CHILD. JARRETT

v. JARRETT (1979), 78 ILL. 2p 337, 344-45;

Itt, Rev. Stat. 1979, cH. 40, Par. 602,

A CONSIDERABLE NUMBER OF WITNESSES

TESTIFIED ON BEHALF OF PETITIONER INDICATING

DANNY WAS SICKLY, UNDISCIPLINED AND OVER-

WEIGHT PRIOR TO COMING INTO JOHN’S CUSTODY,

AND THAT THEREAFTER DANNY IMPROVED, AND A

WARM, LOVING RELATIONSHIP DEVELOPED BETWEEN

THE FATHER AND THE SON,

THAT IS NOT TO SAY WE CONDONE ALL OF

THE FATHER’S CONDUCT. WE DO NOT. WE RECALL

Ms, COFFMAN’S TESTIMONY THAT THE PETITIONER

THREATENED TO REVEAL PICTURES OF HER IN THE

-55-

NUDE IF SHE TESTIFIED AGAINST HIM. WHILE

SUCH EVIDENCE TROUBLES US A GREAT DEAL, WE

HAVE DETERMINED THAT SUCH CONDUCT IS OUT-

WEIGHED BY THE EVIDENCE PRESENTED WHICH

DEMONSTRATES THAT A HEALTHY RELATIONSHIP

EXISTED BETWEEN FATHER AND SON AND THAT DANNY

WAS DOING WELL IN HIS FATHER’S CUSTODY,

BASED UPON OUR EXHAUSTIVE REVIEW OF

THE EVIDENCE, WE FIND THAT THERE HAS BEEN

NO SHOWING THAT THE TRIAL CouRT JUDGE ABUSED

HIS DISCRETION IN AWARDING CUSTODY OF DANNY

TO HIS FATHER,

THE RESPONDENT ALSO CONTENDS THAT SHE

SHOULD HAVE BEEN PERMITTED TO REOPEN THE

CASE PRIOR TO THE ENTRY OF THE JUDGMENT IN

THE CASE BUT AFTER THE PROOFS WERE CLOSED,

IN ORDER TO ALLOW HER TO INTRODUCE EVIDENCE

CONCERNING PETITIONER'S REPUTATION,

IN NOT REOPENING THE CASE TO RECEIVE

ADDITIONAL EVIDENCE, THE RESPONDENT CONTENDS

THAT THE TRIAL COURT ABUSED ITS DISCRETION,

-56-

THE RESPONDENT OFFERS NO SUPPORT FOR HER

POSITION, AND WE FIND NONE. THE TRIAL CourT

DID NOT ABUSE ITS DISCRETION,

WE FURTHER UPHOLD THE APPELLATE CourT’s

JUDGMENT RESPECTING THE PROPERTY DIVISION,

INCLUDING ITS REMAND OF THE CAUSE TO THE

Circuit Court oF CoLes COUNTY TO REQUIRE THE

PETITIONER TO PAY TO RESPONDENT ONE-HALF OF

A TAX-REFUND CHECK IN THE SUM OF $742 THAT

WAS DUE RESPONDENT, JOHN HAD PREVIOUSLY

FORGED KATHRYN'S NAME ON THE BACK OF THE CHECK

AND CASHED IT. HE DOES NOT PRESENTLY DISPUTE

THAT KATHRYN WAS ENTITLED TO RECEIVE $371 OF

THE PROCEEDS OF THAT CHECK,

THE RESPONDENT DID NOT CONTEST IN

THIS CourRT THE APPELLATE CourT’S APPROVAL

OF THE CIRCUIT CouRT’S SUSTAINING OF THE

OBJECTION TO HER OFFER OF PROOF OF THE PETI-

TIONER’S REPUTATION,

ACCORDINGLY, THE JUDGMENT OF THE

APPELLATE CouRT IS AFFIRMED,

-C7-

JUDGMENT AFFIRMED,

JUSTICE MORAN, SPECIALLY CONCURRING:

] CONCUR IN THE JUDGMENT REACHED BY THE

MAJORITY; HOWEVER, I DO NOT CONCUR IN THE STATE-

MENT “THE JARRETT CASE DOES NOT ESTABLISH A

CONCLUSIVE PRESUMPTION THAT, BECAUSE A CUS-

TODIAL PARENT COHABITATES WITH A MEMBER OF

THE OPPOSITE SEX, THE CHILD IS HARMED.”

(EMPHASIS ADDED.) (SLIP oP, AT 8.) IN MY

OPINION, JARRETT DID ESTABLISH A CONCLUSIVE

PRESUMPTION, SEE THE DISSENT IN JARRETT V,

JarReTT (1979), 78 Itt. 2p 337, 352-53 (MORAN,

J., AND GOLDENHERSH, C.J., DISSENTING),

AND ALSO THE DISSENT OF JUSTICE BRENNAN,

JOINED BY JUSTICE MARSHALL, FROM DENIAL OF

THE WRIT OF CERTIORARI IN JARRETT Vs JARRETT

(1980), 449 U.S, 927, 66 L. Ep. 2p 155, 101

m Cr. 529,

JUSTICE UNDERWOOD, DISSENTING:

] BELIEVE THE TRIAL JUDGE ABUSED HIS

DISCRETION IN DENYING THE MOTHER'S PREJUDG~

-6Q.

MENT MOTION TO REOPEN THE PROOFS AND PRESENT

ADDITIONAL EVIDENCE,

THE MAJORITY OPINION NOTES THE FATHER’S

ILLICIT AFFAIRS, ABDUCTION OF DANNY, AND

THREATS TO THE POTENTIAL WITNESS, BUT DOES

NOT MENTION SEVERAL OTHER MATTERS WHICH, IF

TRUE, SEEM TO ME QUITE SIGNIFICANT. IT IS

ASSERTED THAT THE FATHER HAS TWO CHILDREN

BY A PRIOR MARRIAGE, A DAUGHTER WHOM HE HAS

NOT SEEN IN NINE YEARS AND A SON WHOM HE HAS

NEVER SEEN; THAT HE IS UNDER A CourT ORDER

TO PAY $100 WEEKLY FOR THEIR SUPPORT; THAT

SINCE THE HEARING HE HAS LOST THE EMPLOYMENT

HE HELD AT THAT TIME; AND THAT HE HAS INSTI-

TUTED BANKRUPTCY PROCEEDINGS, CERTAINLY

PROOF OF THESE FACTS WOULD BE PERSUASIVE ON

THE QUESTIONS OF CUSTODY AND THE FATHER’S

ABILITY TO SUPPORT THE CHILD,

THE DISSENTING APPELLATE CourT JUSTICE

BELIEVED THE TRIAL CouRT’S AWARD OF CUSTODY

TO THE FATHER WAS CONTRARY TO THE MANIFEST

=.

WEIGHT OF THE EVIDENCE, A POSITION WITH

WHICH I AM INCLINED TO AGREE, THE MOTHER

DENIED OR GAVE RATIONAL EXPLANATIONS FOR THE

OCCURRENCES RECITED BY THE MAJORITY IN SUPPORT

OF THE RESULT IT REACHES, FOR EXAMPLE, THE

ABSENCE OF MITTENS WAS DUE TO THE FACT THAT

THEY WERE TORN FROM THE BOY'S HANDS DURING

THE STRUGGLE AT THE TIME HE WAS ABDUCTED

BY THE FATHER. THE ABSENCE OF MORE FREQUENT

CONTACTS BY THE MOTHER WAS DUE, SHE TESTIFIED,

TO HER ATTORNEY’S ADVICE AND HER FEAR OF THE

FATHER, A FEAR SHARED BY AT LEAST ONE OF THE

FATHER’S SEXUAL PARTNERS,

] BELIEVE THE ADDITIONAL EVIDENCE THE

MOTHER SEEKS TO OFFER MAY WELL TIP THE SCALES

MORE CLEARLY IN HER FAVOR. CONSEQUENTLY,

] WOULD REVERSE THE CIRCUIT AND APPELLATE

CouRTS AND REMAND THE CAUSE TO THE CIRCUIT

CouRT FOR RECONSIDERATION IN THE LIGHT OF

SUCH ADDITIONAL EVIDENCE AS MAY BE PRE-

SENTED,

-60-

JUSTICE GOLDENHERSH yoINs IN THIS

DISSENT,

36 Itt. Dec.l

78 Itt. 2p 337

400 N.E.2p 421

JACQUELINE JARRETT, APPELLEE,

V,

WALTER JARRETT, APPELLANT.

No, 51431

SUPREME CourT OF ILLINOIS,

Dec. 20, 1979,

REHEARING DENIED FeB. 1, 1980,

UNDERWOOD, JusTICe:

On DecemBer 6, 1976, JACQUELINE JARRETT

RECEIVED A DIVORCE FROM WALTER JARRETT IN

THE CiRCUuIT CourRT OF CooK COUNTY ON GROUNDS

OF EXTREME AND REPEATED MENTAL CRUELTY,

THE DIVORCE DECREE, BY AGREEMENT, ALSO

AWARDED JACQUELINE CUSTODY OF THE THREE

JARRETT CHILDREN SUBJECT TO THE FATHER’S

RIGHT OF VISITATION AT REASONABLE TIMES,

In

SEVEN MONTHS LATER, ALLEGING CHANGED CONDI-

TIONS, WALTER PETITIONED 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 VISITATION AT REASONABLE TIMES,

BUT A MAJORITY OF THE APPELLATE COURT REVERSED

(64 Itt. App. 3p 932, 21 Itt. Dec. 718, 382

N.E, 2p 12), AND WE GRANTED LEAVE TO APPEAL,

DURING THEIR MARRIAGE, WALTER AND JAC"

QUELINE 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 ApRit 1977, FIVE MONTHS AFTER THE DIVORCE,

JACQUELINE INFORMED WALTER THAT SHE PLANNED

TO HAVE HER BOYFRIEND, WAYNE HAMMON, MOVE INTO

-69-

THE FAMILY HOME WITH HER. WALTER PROTESTED,

BUT HAMMON MOVED IN ON May 1, 1977, JACQUEL-

INE 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 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

-63-

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 AFFECTIONATE 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 ARGU-

MENTS BEFORE THIS CourRT JACQUELINE’S COUNSEL

CONCEDED THAT SHE AND HAMMON WERE STILL LIV-

ING 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

-6§4-

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 LIVING ARRANGEMENT,

THE CirculT 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 CHIL~

DRED CAUSED BY JACQUELINE’S COHABITATION

WITH HAMMON, AND THAT THE CIRCUIT CouRT

HAS NOT FOUND JACQUELINE UNFIT, IT DECLINED

TO CONSIDER POTENTIAL FUTURE HARMFUL EFFECTS

OF THE COHABITATION ON THE CHILDREN. 64 ILL,

App. 3p 932, 937, 21 Itt. Dec. 718, 382 N.E.

2D 12,

BOTH PARTIES TO THIS LITIGATION HAVE

RELIED ON SECTIONS 602 AND 610 OF THE NEW

ILLINOIS MARRIAGE AND DISSOLUTION OF MARRIAGE

-55-

Act (Itt. Rev. Stat. 1977, cH. 40, Pars,

602, 610), WHICH PROVIDE:

"Sec, 602, BEST INTEREST OF CHILD,

(A) THE CouRT SHALL DETERMINE CUSTODY

IN ACCORDANCE WITH THE BEST INTEREST OF

THE CHILD, JHE 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 INTERRELATION-

SHIP OF THE CHILD WITH HIS PARENT OR PARENTS,

HIS SIBLINGS AND ANY OTHER PERSON WHO MAY

SIGNIFICANTLY AFFECT THE CHILD’S BEST INTER-

EST;

(4) THE CHILD'S ADJUSTMENT TO HIS HOME,

SCHOOL AND COMMUNITY; AND

(5) THE MENTAL AND PHYSICAL HEALTH OF

ALL INDIVIDUALS INVOLVED,

-66-

(B) THE COURT SHALL NOT CONSIDER CON-

DUCT 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 ENVIRONMENT MAY ENDANGER SERIOUSLY HIS

PHYSICAL, MENTAL, 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 PRIOR JUDG-

MENT, THAT A CHANGE HAS OCCURRED IN THE CIR-

CUMSTANCES OF THE CHILD OR HIS CUSTODIAN AND

THAT THE MODIFICATION IS NECESSARY TO SERVE

THE BEST INTEREST OF THE CHILD. IN APPLYING

THESE STANDARDS THE COURT SHALL RETAIN THE

-6/-

CUSTODIAN APPOINTED PURSUANT TO THE PRIOR

JUDGMENT UNLESS:

ss»eee*t *« .- «* «£ *

(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 ENVIRON-

MENT IS OUTWEIGHED BY ITS ADVANTAGES TO HIM,

()* * #0

WE NOTE INITIALLY, HOWEVER, THAT THIS

APPEAL FROM THE CUSTODY MODIFICATION ORDER

WAS TAKEN ON AuGusT ll, 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(p)). WHILE

THE SECTIONS OF THE NEW ACT GOVERNING MODIF-

ICATION OF CUSTODY ORDERS REQUIRE EXPLICIT

FINDINGS (SEE IN RE CusToDY oF HARNE 1979),

77 Wut. 2p 414, 33 Itt. Dec. 110, 396 N.E.2p

499), WE BELIEVE THOSE SECTIONS IN SUBSTANCE

-68-

CODIFY THE PRIOR DECISIONAL 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 Itt. 408, 416, 105 N.E,

2p 300, 304, THIS COURT SAID THAT A DIVORCE

DECREE "IS RES JUDICATA AS TO THE FACTS

WHICH EXISTED AT THE TIME IT WAS ENTERED”

AND THAT “[NJEW CONDITIONS MUST HAVE ARISEN

TO WARRANT THE COURT CHANGING ITS PRIOR CUS~

TODY DETERMINATION.” MOREOVER, THE GUIDING

PRINCIPLE IN CUSTODY ADJUDICATIONS IS THE

BEST INTERESTS OF THE CHILD (41] Itt. 408,

415, 105 N.E. 2p 300) AND THE CHANGE IN CON-

DITIONS MUST ADVERSELY AFFECT THE BEST INTER-

ESTS OF THE CHILD (41] Itt, 408, 416, 105

N.E, 2p 300), THE PRIOR STATUTE ALSO

-69-

DIRECTED THE ATTENTION OF THE COURT TO THE

INTERESTS OF THE CHILD IN CUSTODY ADJUDICATION,

(Sections 13 AND 18 oF THE Divorce AcT (ILL.

Rev. Stat, 1975, cH, 40, pars. 14, 19), RE-

PEALED BY THE ILLINOIS MARRIAGE AND DISSOLU-

TION OF MARRIAGE AcT (ILL. Rev. Stat, 1977,

CH, 40, pars, 101 To 802.) ALTHOUGH PRIOR

ILLINOIS DECISIONS DID NOT EXPLICITLY ARTI-

CULATE THE NEW ACT'S COMMAND 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 ENVIRON-

MENT, THEY DID RECOGNIZE THAT CONTINUITY IN

THE CHILD'S ENVIRONMENT IS IN ITSELF IMPOR-

TANT. (BERGAN V. BeRGAN (1976), 42 ILL. APP,

3p 740, 743, 1 Itt. Dec. 485, 356 NE, 2d

673; Hotroway v. Hotroway (1973), 10 ILL.

App, 3p 662, 665, 294 N.E. 2p 759; CoLLINGs

v. Cottines (1970), 120 ILL. App. 2p 125,

128, 256 N.E. 2p 108; JENKINS Vv. JENKINS

(1967), 81 Itt, App. 2p 67, 72, 74, 225 N.E,

-70-

2p 698; Leary v. LEARY (1965), 61 ILL. App,

2p 152, 155, 209 N.E. 2p 663). 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 RELATIONSHIP WITH THE CHILD (ILL,

Rev, STAT, 1977, cH, 40, PAR, 602) REEMPHASIZE

THE PRINCIPLE STATED IN Nye v, Nye (1952),

411 Itt. 408, 105 N.E, 2p 300, THAT THE Focus

OF CUSTODY DETERMINATIONS MUST BE THE WELFARE

OF THE CHILD,

[1] THE CHIEF ISSUE IN THIS CASE IS

WHETHER A CHANGE OF CUSTODY PREDICATED UPON

THE OPEN AND CONTINUING COHABITATION 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 TAN-

GIBLE EVIDENCE OF CONTEMPORANEOUS ADVERSE

-7\l-

EFFECT UPON THE MINOR CHILDREN, CONSIDER-

ING THE PRINCIPLES PREVIOUSLY ENUNCIATED,

AND THE STATUTORY PROVISIONS, AND PRIOR DEC-

ISIONS OF THE COURTS OF THIS STATE, WE CON-

CLUDE 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 Cope oF 1961

(Itt. 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

1S OPEN AND NOTORIOUS.” IN HEWITT Vv, HEWITT

(1979), 77 Itt. 2p 49, 61-62, 31 ILL. Dec,

827, 394 N,E, 2p 1204, we EMPHASIZED THE

REFUSAL OF THE GENERAL ASSEMBLY IN ENACTING

THE NEW ILLINOIS MARRIAGE AND DISSOLUTION OF

MARRIAGE Act (Itt. Rev. Stat. 1977, cH. 40,

-72?-

PAR 101 ET SEQ.) TO SANCTION ANY NONMARITAL

RELATIONSHIPS AND ITS DECLARATION OF THE

PURPOSE TO “STRENGTHEN AND PRESERVE THE INTEG-

RITY OF MARRIAGE AND SAFEGUARD FAMILY RELA-

TIONSHIPS” (ILL, Rev, STAT. 1977, cH. 40,

PAR, 102(2)),

JACQUELINE ARGUES, HOWEVER, THAT HER

CONDUCT DOES NOT AFFRONT PUBLIC MORALITY BE-

CAUSE SUCH CONDUCT IS NOW WIDELY ACCEPTED,

AND CITES 1978 CeENsus 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 Itt. 2p 49, 31 Itt. Dec. 827, 394

N.E, 2p 1204, 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

-]3-

BY JACQUELINE SIMPLY NULLIFIES THE FORNICA-

TION 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 IT™

SELF, 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 MARRIAGE

AND DISSOLUTION OF MARRIAGE ACT EVIDENCE THE

RELEVANT MORAL STANDARDS OF THIS STATE, AS

DECLARED BY OUR LEGISLATURE. JHE OPEN AND

NOTORIOUS LIMITATION ON THE FORMER’S PRO-

HIBITIONS REFLECTS BOTH A DISINCLINATION

TO CRIMINALIZE PURELY PRIVATE RELATIONSHIPS

AND A RECOGNITION THAT OPEN FORNICATION REPRE-

SENTS A GRAVER THREAT TO PUBLIC MORALITY THAN

PRIVATE VIOLATIONS. CONDUCT OF THAT NATURE,

-7\-

WHEN IT IS OPEN, NOT ONLY VIOLATES THE

STATUTORILY EXPRESSED 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 PEN-

ALIZE CONDUCT WHICH IS ESSENTIALLY PRIVATE

AND DISCREET (PEoPLE v, CessNA (1976), 42 ILL,

App, 3p 746, 749, 1 Itt. Dec. 433, 356 NE.

2D 621), 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 NEIGH-

BORS. IT IS, IN OUR JUDGMENT, CLEAR THAT HER

CONDUCT OFFENDS PREVAILING PUBLIC POLICY,

LYMAN V. PEopLe (1902), 198 ILL. 544, 549-

50, 64 .N.E, 974; Searts v, Peopre (1852),

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

319 Itt. App, 409, 410-11, 416, 49 N.E, 2p

307,

JACQUELINE’S DISREGARD FOR EXISTING

STANDARDS OF CONDUCT INSTRUCTS HER CHILD~

-]/5-

REN, BY EXAMPLE, THAT THEY, TOO, MAY IGNORE

THEM (SEE STARK Vv. STARK (1973), 13 ILL.

App, 3p 35, 299 N.E.2p 605; Brown vs. Brown,

(1977), 218 Va. 196, 237 S.E. 2p 89), AND

COULD WELL ENCOURAGE THE CHILDREN TO ENGAGE

IN SIMILAR ACTIVITY IN THE FUTURE. THAT

FACTOR, OF COURSE, SUPPORTS THE [RIAL 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 EX~

AMPLE CURRENTLY PROVIDED AND THE EXAMPLE

WHICH MAY BE EXPECTED BY THE PARENT IN THE

FUTURE. WE HELD IN Nye v. Nye (1952), 411

Itt. 408, 415, 105 N.E. 2p 300, THAT PAST

-/6-

MORAL INDISCRETIONS 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 ATTEN-

TION 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 EMPHA-

SIZED THIS PRINCIPLE, PARTICULARLY WHEN THE

CHILDREN WERE UNAWARE OF THEIR PARENT'S

MORAL INDISCRETION, (HENDRICKSON V, HEN-

DRICKSON (1977), 49 ILL. App. 3p 160, 7

Itt. Dec. 405, 364 N.E,. 2p 566; STRAND V.

STRAND (1976), 41 ILL. App. 3p 651, 355

N.E. 2p 47; CHRISTENSEN V. CHRISTENSEN

(1975), 31 ILL. App. 3p 1041, 335 N.E. 2p

581; Huey v. Huey (1975), 25 Itt, App. 3D

20, 322 N.E. 2p 560; MutvIHILtL Vv. MULVIHILL

(1974), 20 Itt. App. 3p 440, 314 N,E. 2p

342; HAHN V. HAHN (1966) 69 ILL. App. 2D

-77-

302, 216 N.E. 2p 229; Leary v. LEARY

(1965), 61 ILL. Apr. 2p 152, 209 N.E.2p

663; Jayroe v. JAYRoE (1965), 58 ILL,

App, 2p 79, 206 N.E. 2p 266; ARDEN Vv. ARDEN

(1960), 25 ILL, App. 2p 181, 166 N.E, 2p

111; WotrRrum v. WotFRuM (1955), 5 ILL.

App 2p 471, 126 N.E. 2p 34,) 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 DECLARED STANDARDS

OF CONDUCT AND ENDANGER THE CHILDREN’S

MORAL DEVELOPMENT,

JACQUELINE ARGUES, HOWEVER, THAT THREE

RECENT CASES -- Burris v. Burris (1979),

-78-

70 Itt. App. 3p 503, 26 Itt. Dec. 810,

388 N.E. 2p 811; IN RE MaRRIAGE OF FARRIS

(1979), 69 Itt. App. 3p 1042, 26 IvL. Dec,

608, 388 N.E. 2p 232, and RIPPON Vv. RIPPON

(1978), 64 Itt. App. 3p 465, 21 Itt. Dec.

135, 381 N.E. 2p 70 -- INDICATE THAT THE

MORAL INDISCRETION OF A PARENT IS NOT

SUFFICIENT GROUND FOR DENIAL OF CUSTODY,

IN RIPPON THE MOTHER WHO HAD COMMITTED THE

INDISCRETION PLANNED TO MARRY HER PARAMOUR

AND THERE WAS NO INDICATION OF FUTURE MIS~

CONDUCT, 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 Itt. App. 3p 932, 21 Itt. Dec. 718,

382 N.E.2p 12) AND IN HEWITT V. HEWITT

(1978), 62 Itt. Apr. 3p 861, 20 ILL. Dec.

476, 380 N.E.2p 454, BOTH OF WHICH WE HAVE

NOW REVERSED,

JACQUELINE ALSO ARGUES, AND THE

=

APPELLATE Court AGREED (64 ILL. App. 3p 932,

937, 21 Itt. Dec. 718, 382 N.E. 2p 12),

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 PERSONAL MORAL BELIEFS,

SHE FURTHER ARGUES THAT THE ASSERTION OF

MORAL VALUES IN THIS CASE, AS IN HEWITT

v, Hewitt (1979), 77 Itt. 2p 49, 31 ILL.

Dec. 827, 394 N.E, 2p 1204, IS A TASK MORE

APPROPRIATELY CARRIED OUT BY THE LEGISLATURE,

As POINTED OUT EARLIER, HOWEVER, IT IS THE

LEGISLATURE WHICH HAS ESTABLISHED THE STAN-

DARDS SHE HAS CHOSEN TO IGNORE, AND THE

ACTION OF THE TRIAL CouRT MERELY IMPLEMENT~

ED PRINCIPLES WHICH HAVE LONG BEEN FOLLOWED

IN THIS STATE.

THE MOTHER AGRUES, TOO, THAT SECTION

610 oF THE ILLINOIS MARRIAGE AND DISsoLu-

TION OF MarRIAGE Act (ILL. Rev. Stat. 1977,

~- 80-

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 CASES, PART-

ICULARLY 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, HOWEVER, 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. IO WAIT

-8]-

UNTIL LATER YEARS TO DETERMINE WHETHER

JACQUELINE HAD INCULCATED HER MORAL VALUES

IN THE CHILDREN WOULD BE TO AWAIT A DEMON-

STRATION THAT THE VERY HARM WHICH THE

STATUTE SEEKS TO AVOID HAD OCCURRED. MEA-

SURES 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 EXPECTED THAT

SHE WOULD MARRY HIM, IT IS DIFFICULT TO

PREDICT WHAT PHYCHOLOGICAL EFFECTS OR PROB~

-29-

LEMS MAY LATER DEVELOP FROM THEIR EFFORTS

TO OVERCOME THE DISPARITY BETWEEN THEIR CON-

CEPTS OF PROPRIETY AND THEIR MOTHER'S CONDUCT,

(GEHN V. GEHN (1977), 51 ILL. App, 3p 946,

949, 10 Itt. Dec, 120, 367 N.E. 2p 508,)

NOR WILL THEIR ATTEMPTS TO ADJUST TO THIS

NEW ENVIRONMENT OCCUR IN A VACUUM, JACQUEL-

INE’S DOMESTIC ARRANGEMENTS ARE KNOWN TO HER

NEIGHBORS AND THEIR CHILDREN; TESTIMONY AT

THE HEARING INDICATED THAT WAYNE HAMMON PLAY-

ED 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 CASE 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

-23-

EMOTIONAL OR MENTAL DIFFICULTIES,

FINALLY, WE DO NOT BELIEVE THAT THE

UNITED STATES SUPREME CoURT’S OPINION IN

STANLEY V, ILtINoIs (1972), 405 U.S, 645,

92 S. Ct. 1208, 31 L. Ep. 2p 551, REQuIRES

A DIFFERENT RESULT. IN STANLEY THE SUPREME

CouRT FOUND THAT ILLINOIS 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 ILLEGITIMATE CHILDREN WITHOUT

A PRIOR HEARING TO DETERMINE HIS ACTUAL

RATHER THAN PRESUMPTIVE UNFITNESS, WHEN

THE STATE ACCORDS THAT PROTECTION TO OTHER

PARENTS, DEPRIVES HIM OF EQUAL PROTECTION

OF THE LAW,

[2] THE CASE BEFORE US IS FUNDAMEN-

TALLY DIFFERENT. THE TRIAL CourRT DID NOT

PRESUME THAT JACQUELINE WAS NOT AN ADEQUATE

PARENT, AS THE JUVENILE COURT IN EFFECT DID

IN STANLEY, RATHER THE TRIAL CourT RECOG-

= 84-

NIZED THAT THE AFFECTION 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 EVID-

ENCE INDICATED THAT JACQUELINE HAD NOT

TERMINATED THE TROUBLESOME RELATIONSHIP AND

WOULD PROBABLY CONTINUE IT IN THE FUTURE,

THE TRIAL CouRT TRANSFERRED CUSTODY TO WAL-

TER JARRETT, AN EQUALLY CARING AND AFFEC~

TIONATE PARENT WHOSE CONDUCT DID NOT CONTRA-

VENE THE STANDARDS ESTABLISHED BY THE

GENERAL ASSEMBLY AND EARLIER JUDICIAL DEC-

ISIONS, ITS ACTION IN DOING SO WAS NOT CON-

CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE,

ACCORDINGLY, WE REVERSE THE JUDGMENT

OF THE APPELLATE COURT AND AFFIRM THE JUDG~

MENT OF THE CIRCUIT CourRT oF Cook County,

APPELLATE CourT REVERSED; CIRCUIT

CourRT AFFIRMED,

-85-

GOLDENHERSH, CHIEF JUSTICE, WITH WHOM

THOMAS J. MORAN, JusTICE, JOINS, DISSENT-

ING:

THE MAJORITY STATES, “THE CHIEF ISSUE

IN THIS CASE IS WHETHER A CHANGE OF CUSTODY

PREDICTED UPON THE OPEN AND CONTINUING

COHABITATION OF THE CUSTODIAL PARENT WITH A

MEMBER OF THE OPPOSITE SEX IS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE IN THE

ABSENCE OF ANY TANGIBLE EVIDENCE OF CONTEM-

PORANEOUS ADVERSE EFFECT UPON THE MINOR

CHILDREN.” (78 ILL.2p at 345, 36 ILL. Dec,

AT 3, 400 N.E. 2p at 423,) 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 ENTER-

ED. THIS RECORD SHOWS CLEARLY THAT THE

CHILDREN WERE HEALTHY, WELL ADJUSTED, AND

WELL CARED FOR, AND IT SHOULD BE NOTED

= 86-

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 NEBUL~

QUS CONCEPT OF INJURY TO THE CHILDREN’S

"MORAL WELL-BEING AND DEVELOPMENT,” (78

Itt 2p aT 347, 36 Itt. Dec. at 4, 400

N.E. 2p at 424,) | QUESTION THAT ANY COMPE-

TENT SOCIOLOGIST WOULD ATTRIBUTE THE INCREASE

OF “LIVE IN” UNMARRIED COUPLES TO PARENTAL

EXAMPLE,

THE FRAGILITY OF ITS CONCLUSION CON-

CERNING “PREVAILING PUBLIC POLICY” IS DEM-

ONSTRATED BY THE MAJORITY’S RELIANCE ON CASES

DECIDED BY THIS CourT IN 1852 (SEARLS V,

Peopce, 13 Itt. 597) anp 1902 (Lyman _v.

Peopte, 198 Itt. 544, 64 NE, 974), AND

AN APPELLATE Court DecISION (PEOPLE V.

Potter (1943), 319 Itt. App. 409, 49 N.E.

2p 307) WHICH, RATHER THAN “PREVAILING PUB-

LIC POLICY,” MORE CLEARLY INDICATES THE

~~ *

PREJUDICE EXTANT IN THAT PERIOD AGAINST

INTERRACIAL SEXUAL RELATIONS,

As THE APPELLATE CouRT POINTED OUT,

THE COURTS SHOULD NOT IMPOSE THE PERSONAL,

PREFERENCES AND STANDARDS OF THE JUDIC-

IARY IN THE DECISION OF THIS CASE. CourTS

ARE UNIQUELY EQUIPPED TO DECIDE LEGAL ISSUES

AND ARE WELL ADVISED TO LEAVE TO THE THEOLO-

GIANS THE QUESTION OF THE MORALITY OF THE

LIVING ARRANGEMENT 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 DE-

CLARED TO BE AN UNFIT MOTHER, HAS FORFEITED

THE RIGHT TO HAVE THE CUSTODY OF HER CHILD-

REN, 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 CON-

DITIONS MAKES A CHANGE OF CUSTODY IN THEIR

BEST INTERESTS. THIS RECORD FAILS TO SHOW

EITHER. Mr, JusTIce MoRAN AND | DISSENT

AND WOULD AFFIRM THE DECISION OF THE APPELL-

ATE Court,

MORAN, JusTICE, WITH WHOM GOLDENHERSH,

CHIEF JUSTICE, JOINS, DISSENTING:

] JOIN IN THE DISSENT OF THE CHIEF

JUSTICE, BUT ALSO DISSENT SEPARATELY. My

PRIMARY DISAGREEMENT WITH THE MAJORITY LIES

WITH ITS COUNTENANCING A CHANGE OF CUSTODY

BASED SOLELY ON A CONCLUSIVE PRESUMPTION

THAT HARM TO THE JARRETT CHILDREN STEMMED

FROM JACQUELINE S LIVING ARRANGEMENTS, THE

MAJORITY PURPORTS TO FOLLOW THE ILLINOIS

MARRIAGE AND DISSOLUTION OF MARRIAGE ACT,

YET, UNDER THAT ACT, ONLY ON THE BASIS OF

FACT CAN THERE BE A FINDING THAT A CHANGE

IN CIRCUMSTANCES HAS OCCURRED AND THAT

- 89-

MODIFICATION OF THE PRIOR CUSTODY JUDGMENT

IS NECESSARY TO SERVE THE BEST INTEREST OF

THE CHILDREN. (ILL. Rev. Stat. 1977, CH,

40, PAR, 610(B).) THE CourT IS NOT TO CON-

SIDER CONDUCT OF A CUSTODIAN IF THAT CON-

DUCT DOES NOT AFFECT HIS RELATIONSHIP TO

THE CHILD, (Itt. Rev. Stat. 1977, cH. 40,

PAR, 602(B).) IN THIS CASE, NOT ONE SCIN-

TILLA OF ACTUAL OR STATISTICAL EVIDENCE OF

HARM OR DANAGER TO THE CHILDREN HAS BEEN

PRESENTED, TO THE CONTRARY, ALL OF THE EVID-

ENCE OF RECORD, AS RELATED BY THE MAJORITY,

INDICATES THAT UNDER JACQUELINE’S CUSTOD-

IANSHIP THE CHILDREN’S WELFARE AND NEEDS

WERE MET, ALSO, THE IRIAL COURT EXPRESSLY

DECLINED TO FIND JACQUELINE UNFIT. NEVER-

THELESS, THE MAJORITY’S FINDING OF A VIOLA-

TION OF THE SELDOM~ENFORCED FORNIFICATION

STATUTE EFFECTIVELY FORECLOSED ANY FURTHER

CONSIDERATION OF THE CUSTODY ISSUE. INSTEAD

OF FOCUSING SOLELY ON THE BEST INTEREST

= 90-

OF THE CHILDREN ~~ THE “GUIDING STAR” (NYE

v. Nye (1952), 411 Itt. 408, 415, 105 N.E.

2p 300) -- THE MAJORITY HAS UTILIZED CHILD

CUSTODY AS A VEHICLE TO PUNISH JACQUELINE

FOR HER “MISCONDUCT,” SUCH SELECTIVE EN-

FORCEMENT OF A STATUTE IS INAPPROPRIATE

AND, ESPECIALLY IN THE CHILD-CUSTODY CON-

TEXT, UNFORTUNATE,

THE MAJORITY DECISION ALSO IS AT ODDS

WITH THE PRINCIPLE OF STANLEY V. ILLINOIS

(1972), 405 U.S, 645, 92 S, Ct. 1208, 31

L. Ep 2p 551, THE CONSTITUTIONAL INFIRMITY

OF THE STATUTORY PRESUMPTION IN STANLEY CASTS

DOUBT ON THE VALIDITY OF THE JUDICIALLY

CREATED CONCLUSIVE PRESUMPTION IN THIS CASE,

AFTER STANLEY, AN UNWED FATHER MAY NOT BE

DEPRIVED OF HIS ILLEGITIMATE CHILDREN WITH-

OUT 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

-9]-

SERVE THE BEST INTEREST OF THE CHILDREN,

A HEARING AT WHICH CUSTODY IS DETERMINED

UN THE BASIS OF THE CONCLUSIVE PRESUMPTION

SANCTIONED BY THE MAJORITY AMOUNTS TO NO

HEARING AT ALL,

NO, 17189

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In RE: THE MARRIAGE OF )

JOHN DELANCE THOMPSON, ; APPEAL FROM

) Circuit Court

PETITIONER-COUNTER- ) Cotes CouNnTY

RESPONDENT-APPELLEE, ) -D-363

AND ) HONORABLE

) James R,

KATHRYN MAE THOMPSON, ) WaTSON, JUDGE

) PRESIDING,

RESPONDENT-COUNTER- )

PETITIONER-APPELLANT. )

RULE 23 ORDER

RESPONDENT, KATHRYN MAE THOMPSON,

-92-

APPEALS PORTIONS OF A MARRIAGE DISSOLUTION

DECREE ENTERED BY THE CIRCUIT COURT OF

Cotes County on May 6, 1981, DISSOLVING HER

MARRIAGE TO PETITIONER, JOHN DELANCE THOMP-

SON, SHE APPEALS THE PORTIONS OF THE DECREE

AWARDING CUSTODY OF DANNY, THE THEN THREE-

YEAR-OLD SON OF THE PARTIES, TO PETITIONER

AND THE PORTIONS DIVIDING THE MARITAL PRO-

PERTY. SHE CONTENDS: (1) THE COURT

SHOULD HAVE DEFERRED JURISDICTION TO A

TRIAL CourT IN THE STATE OF MICHIGAN;

(2) THE AWARD OF CUSTODY WAS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE; (3)

THE DIVISION OF PROPERTY WAS ERRONEOUS;

(4) THE COURT ERRED IN SUSTAINING OBJECTION

TO HER OFFER OF PROOF OF PETITIONER’S REPUT-

ATION; AND (5) THE COURT ERRED IN REFUSING

TO ALLOW HER TO REOPEN HER CASE,

THE CLAIM THAT THE COURT SHOULD HAVE

DEFERRED TO THE MICHIGAN COURT WAS BASED

UPON CONDUCT OF PETITIONER IN TAKING DANNY

_Q3-

FROM RESPONDENT IN MICHIGAN AND RETURNING

WITH HIM TO THE STATE OF ILLINOIS. THE

FOLLOWING WAS ESTABLISHED BY UNDISPUTED

EVIDENCE. Prior TO NovemBer 30, 1979, THE

COUPLE CONTEMPLATED DISSOLVING THEIR MARRI-

AGE. ON THAT DATE RESPONDENT LEARNED THAT

PETITIONER, OSTENSIBLY AWAY ON BUSINESS, WAS

ACTUALLY VISITING AND HAVING SEXUAL INTER-

COURSE WITH A FEMALE BUSINESS ASSOCIATE,

RESPONDENT THEN TOOK DANNY WITH HER FROM THE

MARITAL HOME AT LERNA, ILLINOIS, TO HER

PARENTS HOME IN MICHIGAN. ON DECEMBER 7,

1979, PETITIONER FILED A PETITION FOR

DISSOLUTION IN THE CIRCUIT CouRT oF COLES

COUNTY AND OBTAINED AN ORDER FOR TEMPORARY

CustoDy OF DANNY. SUBSEQUENTLY RESPONDENT

FILED SUIT IN A TRIAL CourRT IN MICHIGAN

AND, ON DECEMBER 12, 1979, OBTAINED AN

ORDER OF THAT COURT GRANTING HER TEMPORARY

CUSTODY OF DANNY. PETITIONER OBTAINED

INFORMATION AS TO RESPONDENT'S WHEREABOUTS

-Qu-

AND ON DecemBer 30, 1979, FLEW THERE, ACCOM-

PANIED BY A PRIVATE DETECTIVE, FORCIBLY TOOK

DANNY FROM PETITIONER AND RETURNED WITH

HIM TO ILLINOIS,

THE UNIFORM CHILD CustoDy JURISDICTION

Act (Itt. Rev. Stat. 1979, cH. 40, par. 2101

ET SEQ.) PROVIDES GUIDELINES TO AVOID CON-

FLICT AND COMPETITION WITH COURTS OF OTHER

STATES IN DETERMINING MATTERS OF CHILD CUS-

TODY, AMONG THE PURPOSES OF THE ACT ARE:

(1) TO ASSURE THE LITIGATION CONCERNING THE

CUSTODY OF THE CHILD TAKE PLACE IN THE STATE

WITH WHICH THE CHILD AND THE FAMILY HAS THE

CLOSEST CONNECTION; AND (2) TO DETER ABDUC-

TIONS AND OTHER UNILATERAL REMOVALS OF

CHILDREN UNDERTAKEN TO OBTAIN CUSTODY

AWARDS, ILL. Rev. STAT. 1979, cH. 40, PAR,

2102(3), (5).

Section 4(A)(1) oF THE AcT (ILL. Rev,

Stat. 1979, cH. 40, par. 2104 (a)(1) PRovIDES

THAT THE CIRCUIT COURTS HAVE “JURISDICTION”

-95-

TO MAKE A CHILD CUSTODY DETERMINATION IF

THE STATE IS THE HOME STATE OF THE CHILD

AT THE TIME OF THE COMMENCEMENT OF THE

PROCEEDING OR HAD BEEN THE CHILD’S HOME

STATE WITHIN SIX MONTHS BEFORE COMMENCE-

MENT OF THE PROCEEDING. HOWEVER, SECTION 9

(Iu. Rev. Stat, 1979, cH. 40, par. 2109)

PROVIDES THAT IF THE PETITIONER FOR AN INIT~

IAL JUDGMENT HAS WRONGFULLY TAKEN THE CHILD

FROM ANOTHER STATE OR HAS ENGAGED IN SIMILAR

REPREHENSIBLE CONDUCT, THE COURT MAY DECLINE

TO EXERCISE “JURISDICTION” IF TO DO SO IS

JUST AND PROPER UNDER THE CIRCUMSTANCES,

WE DISAPPROVE THE CONDUCT OF PETIT-

IONER IN FORCIBLY OBTAINING PHYSICAL CUSTODY

OF DANNY FROM RESPONDENT IN MICHIGAN AND

RETURNING HIM TO ILLINOIS. PETITIONER

MAINTAINS HE USED DILIGENCE TO DETERMINE

WHETHER ANY MICHIGAN COURT HAD RULED ON

THE CHILD’S CUSTODY. REGARDLESS, WE DEEM

PETITIONER'S ACTIONS TO BE THE TYPE OF

_Of-

CONDUCT SECTION 9(A) WAS DESIGNED TO PRE-

VENT. THE REMEDY PROVIDED BY SECTION 9(A)

IS FOR THE AGGRIEVED SPOUSE TO REQUEST THE

FORUM STATE TO DECLINE TO EXERCISE JURIS-

DICTION SO THAT THE WRONGFUL OBTAINING OF

CUSTODY WILL NOT DETERMINE THE FORUM FOR

THE DECISION. HAD RESPONDENT MADE SUCH A

REQUEST HERE, BEFORE THE COURT HAD HEARD

THE CASE ON THE MERITS, SHE MAY HAVE HAD A

VALID CLAIM. HOWEVER, NO SUCH REQUEST WAS

MADE IN THE TRIAL Court. IN THE CLOSING

ARGUMENTS ON JANUARY 21, 1981, MORE THAN

A YEAR AFTER THE CASE HAD COMMENCED, RES-

PONDENT’S COUNSEL CALLED THE COURT’S ATTEN-

TION TO SECTION 9, HE DID NOT REQUEST THAT

THE COURT DEFER JURISDICTION TO MICHIGAN

BUT MERELY REQUESTED THAT THE COURT CONSIDER

THE VIOLATION IN MAKING ITS DETERMINATION

AS TO CUSTODY. WE DO NOT DEEM THAT TO BE

THE REMEDY ENVISIONED BY THE ACT,

-97-

THE WORD “JURISDICTION” IS OBVIOUSLY

NOT USED IN SECTION 9(A) IN THE STRICT SENSE

OF THE POWER OF THE COURT TO HEAR THE CASE,

A POWER WHICH IF LACKING WOULD RENDER THE

COURT’S JUDGMENT VOID. RATHER THE WORD

“JURISDICTION” IS USED IN A BROADER SENSE

REFERRING TO A POWER WHICH THE COURT CAN

EXERCISE OR NOT AS IT DETERMINES TO BE PRO-

PER, THUS ANY ISSUE OF THE COLES COUNTY

Cirrcu’* Court’s EXERCISE OF ITS “JURISDIC-

TION” HERE HAS BEEN WAIVED BY FAILURE OF

RESPONDENT TO TIMELY RAISE THE ISSUE.

MUCH OF THE RESPONDENT'S CLAIM THAT

THE CUSTODY AWARD WAS CONTRARY TO THE MANI-

FEST WEIGHT OF THE EVIDENCE ARISES FROM

EVIDENCE OF IMMORAL CONDUCT ON THE PART OF

PETITIONER. UNDISPUTED EVIDENCE WAS PRE-

SENTED OF HIS HAVING SEXUAL INTERCOURSE

WITH SEVERAL WOMEN, ONE OF WHOM TOOK CARE

OF DANNY AND STAYED IN THE HOME WITH

PETITIONER AND DANNY OVER SEVERAL WEEKENDS,

-98-

THIS CONDUCT, ALTHOUGH NOT TO BE CONDONED,

WAS NOT COMPARABLE TO THAT HELD TO BE

SUFFICIENT OF ITSELF TO JUSTIFY THE [RIAL

CouRT IN CHANGING THE CUSTODY OF CHILDREN

7, 10, AND 12 YEARS OF AGE IN JARRETT V,

Jarrett (1979), 78 Itt. 2p 337, 400 N.E. 2p

421, THERE, THE CUSTODIAL SPOUSE AND THE

PARAMOUR COHABITATED OPENLY AND CONTINU-

OUSLY AND THE CHILDREN WERE AWARE OF THE

IMPROPRIETY OF THEIR RELATIONSHIP,

A SUBSTANTIAL NUMBER OF WITNESSES TESTI-

FIED ON BEHALF OF PETITIONER INDICATING DANNY

WAS SICKLY, UNDISCIPLINED AND OVER-WEI GHT

PRIOR TO COMING INTO PETITIONER’ S CUSTODY,

AND THAT THEREAFTER DANNY IMPROVED, AND A

WARM, LOVING RELATIONSHIP DEVELOPED BETWEEN

THE FATHER AND THE SON. THE CASE WAS NOT

HEARD ON THE MERITS UNTIL DECEMBER OF 1980,

A YEAR AFTER PETITIONER HAD OBTAINED CUSTODY

OF THE CHILD. PETITIONER EMPHASIZES THAT

RESPONDENT HAD LITTLE CONTACT WITH DANNY

DURING THIS PERIOD AND MAINTAINS THIS

INDICATED A LACK OF INTEREST ON HER PART,

HOWEVER, SHE TESTIFIED THAT HER FINANCIAL

CIRCUMSTANCES AND FEAR OF PETITIONER PRE-

VENTED HER FROM VISITING DANNY, IN ADDITION

SHE STATED THAT SHE DID NOT KNOW WHERE

PETITIONER AND DANNY WERE FROM JULY TO DEC-

EMBER 1980,

THE WOMAN WHO HAD STAYED WITH PETITIONER

AND DANNY ON WEEKENDS TESTIFIED PETITIONER

HAD THREATENED TO REVEAL PICTURES OF HER IN

THE NUDE IF SHE TESTIFIED AGAINST HIM, SHE

STATED SHE FEARED PETITIONER, RESPONDENT

ALSO TESTIFIED TO FEARING PETITIONER, EVID-

ENCE WAS ALSO PRESENTED THAT PETITIONER WAS

FIRED FROM A JOB FOR TAKING SOME SALVAGE

ITEMS WITHOUT PAYING FOR THEM, JHE EVID™-

ENCE CAST QUESTION UPON PETITIONER'S

CHARACTER,

-100-

EVIDENCE ALSO SHOWED PETITIONER HAD MOVED

TWICE DURING THE YEAR BETWEEN FILING SUIT

AND THE HEARING OF THE EVIDENCE. THIS

WAS A MATERIAL MATTER OR CONCERN, (RUSSELL

v, Russett (1979), 80 ILL. App. 3p 41, 399

N.E, 2p 212; Hottoway v, HoLLoway (1973),

10 Itt. App. 3p 662, 294 N.E. 2p 759.)

HOWEVER, AS DANNY WAS NOT SHOWN TO HAVE BEEN

ADVERSELY AFFECTED BY THE MOVES OR PETIT-

IONER’S CHANGE OF JOBS, THE EVIDENCE DID

NOT REQUIRE THE CUSTODY BE AWARDED TO THE

MOTHER, (MASON V. MASON (1977), 49 ILL.

App, 3p 775, 364, N. E. 2p 705.) THE FACT

THAT DANNY WAS OF TENDER YEARS AND THE

RESPONDENT WAS THE MOTHER WAS ALSO NOT CON-

TROLLING. (IN RE MARRIAGE OF RAmER (1980),

84 ILL, App. 3p 213, 405 N.E, 2p 401.) As

WE HAVE INDICATED, WE DO NOT APPROVE OF

PETITIONER’S CONDUCT IN TAKING CUSTODY OF

DANNY BY FORCE IN MICHIGAN, BUT WE DO NOT

CONSIDER THAT TO BE A SERIOUS ELEMENT TO

-101-

CONSIDER IN DETERMINING CUSTODY, THE REM~

EDY AVAILABLE TO RESPONDENT WOULD HAVE BEEN

FOR HER TO MAKE TIMELY REQUEST FOR THE COURT

TO HAVE DEFERRED TO THE JURISDICTION OF THE

MICHIGAN CourT,

BECAUSE OF THE EVIDENCE OF THE HEALTHY

RELATIONSHIP BETWEEN PETITIONER AND DANNY

AND THE EVIDENCE THAT DANNY WAS DOING WELL

IN HIS FATHER’S CUSTODY, WE DO NOT FIND THE

AWARE OF PERMANENT CUSTODY TO PETITIONER TO

HAVE BEEN CONTRARY TO THE MANIFEST WEIGHT

OF THE EVIDENCE OR A BREACH OF DISCRETION,

WE CAN DISPOSE OF THE QUESTION OF THE

DIVISION OF PROPERTY SUMMARILY. THE DIVISION

NEED NOT BE EQUAL. (IN RE MARRIAGE OF

McMAHON (1980), 82 ILL. App. 3p 1126, 403

N.E, 2p 730.) IT NEED ONLY BE yusT. (IN

Re MARRIAGE OF ASCHWANDEN (1980), 82 ILL.

2p 31, 411 N.E. 2p 238,) HERE THE DIVISION

FINALLY DETERMINED BY THE DECREE PLACED ON

FILE WAS NEARLY EQUAL, HOWEVER, THE DECREE

-]02-

DID NOT REQUIRE PETITIONER TO PAY RESPON-

DENT ONE-HALF OF THE AMOUNT OF A TAX REFUND

CHECK IN THE SUM OF $742 WHICH HE HAD CASHED

BY SIGNING HER NAME TO THE CHECK WITHOUT

HER AUTHORITY, PETITIONER DOES NOT DISPUTE

THAT RESPONDENT WAS ENTITLED TO HAVE REC™~

EIVED $37] OF THE PROCEEDS OF THAT CHECK,

WE FIND NO ERROR IN THE DIVISION OF PROPERTY

OTHER THAN THIS APPARENTLY INADVERTENT

OMISSION,

RESPONDENT ATTEMPTED TO OFFER INTO

EVIDENCE A LETTER PURPORTEDLY WRITTEN BY

PETITIONER'S FORMER WIFE TO HIM. IT CON-

TAINED HER MANY COMPLAINTS ABOUT HIM,

RESPONDENT OFFERED IT TO SHOW PETITIONER'S

REPUTATION, REGARDLESS OF WHETHER REPUTA-

TION EVIDENCE WAS PROPER AND REGARDLESS OF

WHETHER REPUTATION SHOULD BE SHOWN BY A

PRIOR STATEMENT OF ONE NOT CALLED AS A WIT-

NESS, THE CONTENT OF THE DOCUMENT DID NOT

-10>-

CONTAIN STATEMENTS WHICH, IF PROPERLY PRE-

SENTED, COULD BE USED TO PROVE REPUTATION

(1,E., THE COMPOSITE OPINION OF WHAT A

GROUP OF PEOPLE THINK OF A PERSON.) (CLEARY

AND GRAHAM, HANDBOOK OF ILLINOIS EVIDENCE

§ 405.1, 405.2 (3rp Ep, 1979).) THE LETTER

CONTAINED ONLY THE WRITER'S OPINION OF

PETITIONER AND CITED INSTANCES OF HIS

ALLEGED WRONGFUL CONDUCT. THE COURT PROPERLY

SUSTAINED OBJECTION TO ITS OFFER,

ALTHOUGH EVIDENCE AS TO THE MERITS OF

THE CASE WAS HEARD IN DECEMBER 1980, THE

DECREE FROM WHICH APPEAL WAS TAKEN WAS NOT

ENTERED UNTIL MAY 6, 1981. On ApPriv 1,

1980, RESPONDENT MOVED TO REOPEN THE CASE TO

OFFER ADDITIONAL EVIDENCE TO SHOW: (1)

RESPONDENT HAD PURPORTEDLY REMARRIED ON

DecemBerR 24, 1980, SEVERAL MONTHS BEFORE

THE DIVORCE DECREE WAS ENTERED; (2) HE

HAD BEEN FIRED FROM THE EMPLOYMENT HE HELD

AT THE TIME OF HEARING; AND (3) HE HAD

-104-

FILED IN BANKRUPTCY IN MARCH 1981, WHETHER

THE COURT SHOULD ALLOW A PARTY TO REOPEN

TO PRODUCE FURTHER EVIDENCE IS A MATTER IN

WHICH THE COURT HAS SUBSTANTIAL DISCRETION,

(FLowers V. KELLAR (1926), 322 ILL. 265,

153 N.E. 351.) THE MOTION HERE WAS NOT

SUPPORTED BY AFFIDAVIT, AND NEITHER THE LOSS

OF PETITIONER’S JOB NOR HIS BANKRUPTCY WOULD

HAVE BEEN OF SUBSTANTIAL SIGNIFICANCE AS

LONG AS DANNY WAS BEING WELL CARED FOR,

THE ATTEMPTED MARRIAGE WAS MORE SERIOUS,

BUT IT OCCURRED AFTER THE COURT HAD PRO-

NOUNCED IN OPEN CoURT THAT THE GROUNDS FOR

DISSOLUTION HAD BEEN PROVED, TIHE TRIAL

CouRT DID NOT ABUSE ITS DISCRETION IN REFUS-

iNG TO REOPEN THE CASE,

ACCORDINGLY, WE AFFIRM ALL ASPECTS OF

THE DECREE ON APPEAL EXCEPT THAT WITH REF-

ERENCE TO THE DIVISION OF PROPERTY, WE

REVERSE THAT PORTION OF THE DECREE TO THE

EXTENT THAT IT MAKES NO REFERENCE TO

-105-

PETITIONER BEING REQUIRED TO REIMBURSE

RESPONDENT IN THE SUM OF $37] AS HER SHARE

OF THE TAX REFUND CHECK HE HAD CASHED. THE

CASE IS REMANDED TO THE CIRCUIT COURT OF

Cotes CouNTY WITH DIRECTIONS THAT THE DECREE

BE AMENDED ACCORDINGLY,

AFFIRMED IN PART; REVERSED IN PART;

REMANDED WITH DIRECTIONS,

ENTERED: NOVEMBER 5, 198]

ORDER DRAFTED BY GREEN, J., AND

CONCURRED IN BY LONDRIGAN, J.;

WEBBER, J., CONCURS IN PART,

DISSENTS IN PART,

MR, JUSTICE WEBBER, CONCURRING IN PART

AND DISSENTING IN PART:

I CONCUR WITH THE MAJORITY THAT JURIS-

DICTION OF THE CAUSE LAY IN ILLINOIS AND IN

THE ERROR IN THE DIVISION OF MARITAL PRO-

PERTY, HOWEVER, I AM FIRMLY CONVINCED THAT

-106-

THE TRIAL CouRT ABUSED ITS DISCRETION IN

AWARDING CUSTODY TO THE HUSBAND AND IN

REFUSING TO TAKE ADDITIONAL EVIDENCE.

THE ENTIRE RECORD REVEALS THE FATHER

AS A PATENT BULLY WHO WILL USE ANY MEANS TO

OBTAIN HIS OWN WAY. THE SNATCHING OF THE

CHILD FROM THE STREET IN MICHIGAN, THE

THREAT TO THE POTENTIAL WITNESS WHICH RESULT~

ED IN CRIMINAL CHARGES OF DISORDERLY CON-

DUCT, THE FEAR ENGENDERED IN THE MOTHER ~

NONE OF THESE ARE CHARACTERISTIC OF ONE

OF NATURE’S NOBLEMEN. ADD TO THE MIXTURE

HIS ERRATIC WORK RECORD, HIS ADMITTED FOR-

GERY IN THE ENDORSEMENT OF THE CHECK AND

HIS ILLICIT AFFAIRS, AND I CANNOT COMPRE-

HEND HOW HE CAN BE ADJUDGED FIT.

THE EVIDENCE PRESENTED AS TO THE

IMPROVEMENT IN THE CHILD'S HEALTH AND AT-

TITUDE SINCE THE SEPARATION PROVES ONLY

THAT THE DISSENSION WITHIN THE MARRIAGE

WAS THE PROBABLE CAUSE OF HIS PRIOR ILL™

-107-

BEING, GIVEN THE NATURE OF THE FATHER,

IT IS NOT TOO DIFFICULT TO DEDUCE WHERE THE

TROUBLE LAY, NOR WHY THE MOTHER FAILED TO

COMMUNICATE WITH THE CHILD, A FACT UPON

WHICH THE TRIAL CouRT AND THE FATHER LAY

GREAT EMPHASIS, IF THIS FATHER IS TO BE

THE ROLE“MAKER FOR THE BOY, IT WILL BE WISE

FOR THE JUVENILE COURT TO BE PREPARED TO

SEE THEM BOTH WITHIN A RELATIVELY SHORT

TIME,

THE TRIAL CouRT FURTHER ERRED IN REFUS-

ING TO RECEIVE THE FURTHER EVIDENCE OF THE

FATHER’S BIGAMOUS MARRIAGE, HIS JOB LOSS

AND BANKRUPTCY, THE FORMER BEARS DIRECTLY

UPON HIS ATTITUDE TOWARDS LAWS AND CIVILI-

ZED CONDUCT AND THE LATTER UPON HIS ABILITY

TO SUPPORT THE CHILD,

] WOULD AFFIRM THE QUESTION OF JURIS-

DICTION, BUT IN ADDITION TO REVERSING FOR

MODIFICATION OF THE PROPERTY DISPOSITION,

I WOULD ALSO REVERSE THE CUSTODY AWARD WITH

-108-

DIRECTIONS TO TAKE THE ADDITIONAL EVIDENCE

AND RECONSIDER,

PETITION FOR REHEARING

MAY IT PLEASE THE COURT: KATHRYN MAE

THOMPSON, PETITIONER, SUBMITS THAT THIS

COURT HAS OVERLOOKED THE FOLLOWING POINTS

AND AUTHORITIES IN REACHING ITS DECISION IN

THIS CASE:

THEY ARE AS FOLLOWS:

A. AFFECTION AND CARE OF A PARENT

DO NOT ALONE ASSUME THE WELFARE OF THE

CHILD, IF OTHER CONDUCT OF THE PARENT

THREATENS THE CHILD’S MORAL DEVELOPMENT,

B. THE REQUIREMENT OF Sec, 602(B),

CH. 40, Itt. Rev. Stats., “THE CourT SHALL

NOT CONSIDER THE CONDUCT OF THE PRESENT

OR PROPOSED GUARDIAN THAT DOES NOT EFFECT

HIS RELATIONSHIP TO THE CHILD,” INCLUDES

NOT ONLY CURRENT AND PRESENT DANGERS

-109-

WHICH ARE VISIBLE AND OBVIOUS, BUT ALSO

INCLUDES FUTURE POTENTIAL DANGERS WHICH

MAY TAKE YEARS TO SHOW THEIR ADVERSE EFFECT

ON THE CHILD. THIS INCLUDES NOT ONLY MORAL

HAZARDS, BUT ALSO MENTAL AND EMOTIONAL

HEALTH OF THE CHILD.”

BoTH OF THESE POINTS ARE FOUND IN

THE CASE OF JARRETT VS. JARRETT, 36 ILL.

Dec. 1, P. 6, 400 N.E. 2p, 421, 78 Iv.

2p, 33/7, 1979.

WE POINT OUT THAT THIS CouRT HAS FAILED

TO TAKE INTO ACCOUNT THE LONG TERM EFFECT

OF JOHN THOMPSON’S MANY FAILINGS ON THE

CHILD DANNY, AS REQUIRED BY THE JARRETT

vS, JARRETT CASE,

ONE MUST CONCLUDE FROM READING THIS

Court's OPINION THAT JOHN THOMPSON'S FAIL™

INGS HAVE NOT AND WILL NOT ADVERSELY

EFFECT THE CHILD, DANNY. QUERY: How CAN

THIS COURT MAKE THAT CONCLUSION WITH A

CHILD WHO WAS 2% TO 3% YEARS OLD WHEN ALL

-110-

OF THESE ACTIONS, ON HIS FATHER’S PART,

WERE TAKING PLACE? THESE ACTIONS, MOST

OF WHICH WERE CONDEMNED BY THIS CourT,

DID NOT AND WILL NOT ADVERSELY EFFECT THE

CHILD ACCORDING TO THIS CouRT’S OPINION,

WE SUBMIT THAT THOSE ACTIONS WILL BE AD-

VERSELY REFLECTED IN THE CHILD MANY YEARS

HENCE,

THIS CourRT’S OPINION ESTABLISHES THAT

THERE ARE NO MORAL CONSIDERATIONS IN AWARD-

ING CUSTODY OF THE CHILD WHICH WE SUBMIT

IS CONTRARY TO THIS CouRT’S HOLDING IN THE

JARRETT CASE,

WE POINT OUT THAT THE COURT FAILED

TO TAKE INTO ACCOUNT THE FACT THAT JOHN

THOMPSON FAILED TO SHOW LITTLE OR NO

INTEREST IN OR SUPPORT HIS TWO CHILDREN BY

A PREVIOUS MARRIAGE,

THE ONLY SuPREME CourRT DECISION

WHICH REALLY TOUCHES ON THE FACTS OF THIS

CASE AND THE LAW APPLICABLE TO THE FACTS

gt!

OF THIS CASE IS JARRETT VS. JARRETT, 78

ILL. 2D 337, 4OO N.E. 2p, 421 36 ILL,

Dec. 1. IN JARRETT, THE ILLINOIS DECISION

Case, P. 4, THIS COURT STATES THAT THE

GENERAL ASSEMBLY, IN ENACTING THE NEW

ILLINOIS MARRIAGE AND DISSOLUTION OF

MARRIAGE ACT REFUSED TO SANCTION ANY NON-

MARITAL RELATIONSHIP AND DECLARED THE PUR-

POSE OF STRENGTHENING AND PRESERVING THE

INTEGRITY OF THE MARRIAGE AND THE SAFE-

GUARDING OF FAMILY RELATIONSHIP,

THIS CouRT IN THIS CASE ALSO ON P.4,

POINTS OUT THAT THE FORNICATION STATUTE

CITED BY THE COURT IN THIS CASE AND THE

ILLINOIS MARRIAGE AND DISSOLUTION OF MAR-

RIAGE ACT EVIDENCE THE RELEVANT MORAL

STANDARDS OF THE STATE AS DECLARED BY

THE LEGISLATURE,

WE SUBMIT THAT THE RELEVANT MORAL

STANDARDS OF THIS STATE ARE VERY MUCH A

PART OF THE LAW OF THIS STATE AND WE SUB-

= & .,

MIT HAVE BEEN OVERLOOKED BY THIS COURT IN

REACHING ITS OPINION,

TH1s Court, IN JARRETT, RECOGNIZED

THAT WITH CHILDREN IN THE PRESENCE OF PAR-

ENTS WHO ARE DISREGARDING THE STANDARDS OF

SOCIETY, THOSE CHILDREN ARE BEING INSTRUCTED

BY EXAMPLE. THE IGNORING OF THOSE STAN-

DARDS BY THE PARENT ARE AN INVITATION TO

THE CHILD TO IGNORE THEM WHEN THEY REACH A

CERTAIN AGE AND AMOUNT T. AN ENCOURAGEMENT

TO THE CHILDREN TO ENGAGE IN SIMILAR ACT~

IVITY IN THE FUTURE, THIS COURT REFERRED

TO THE CASE OF Nye vs. Nye (1952), 411 ILL.

408, 415, 105 N.E, 2p 300, HOLDING THAT

THE TRIAL CourT’S ATTENTION MUST BE FOCUSED

ON THE MORAL VALUES WHICH THE PARENT IS

ACTUALLY DEMONSTRATING TO THE CHILD,

At pAGE 5 OF THE JARRETT OPINION, IN

ANSWER TO THE ARGUMENT BY THE MOTHER THAT

THERE HAD BEEN NO SHOWING THAT THE

MOTHER’S MORAL INDISCRETION SHOWED ANY

“ie

DETRIMENTAL EFFECT ON THE CHILD OR CHILD-

REN, THE COURT SAID, “IN CASES SUCH AS

THIS ONE, HOWEVER, SUCH A NARROW INTERPRE-

TATION OF THE STATUTE WOULD DEFEAT ITS PUR-

POSE,” 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 INCULCATED HER MORAL

VALUES IN THE CHILDREN WOULD BE TO WAIT A

DEMONSTRATION THAT THE VERY HARM WHICH THIS

STATUTE SEEKS TO AVOID HAD OCCURRED, MEA-

SURES TO SAFEGUARD THE MORAL WELL BEING OF

CHILDREN WHOSE LIVES HAVE ALREADY BEEN DIS-

RUPTED BY THE DIVORCE OF THEIR PARENTS,

CANNOT HAVE BEEN INTENDED TO BE DELAYED

UNTIL THERE ARE TANGIBLE MANIFESTATIONS OF

DAMAGE TO THEIR CHARACTER, THE COURT ON

PAGE 6 STATED, AFFIRMING THE TRIAL Court,

"RATHER THE TRIAL COURT RECOGNIZED THAT

-]]4-

THE AFFECTION AND CARE OF A PARENT DO NOT

ALONE ASSURE THE WELFARE OF THE CHILD IF

OTHER CONDUCT OF THE PARENTS THREATENS THE

CHILD’S MORAL DEVELOPMENT, ”

JOHN THOMPSON HAS INDEED BEEN GUILTY OF

MANY TRANSGRESSIONS OF SOCIETY'S STANDARDS

AS HAS BEEN SHOWN IN THIS CASE AND RECOGNIZED

BY THIS COURT IN ITS OPINION. THIS IS A CASE

OF WHO GETS THE CHILD FROM THE FIRST INSTANCE

RATHER THAN THE QUESTION OF TAKING THE

CHILDREN AWAY FROM ONE OF THE PARENTS WHO

HAD PREVIOUSLY BEEN AWARDED CUSTODY AS WAS THE

CASE IN THE JARRETT CASE. WE BELIEVE THE

RULE SHOULD BE MORE RESPONSIVE TO THE MORAL

CONSIDERATIONS AT THAT POINT OF TIME THAN IT

WOULD BE LATER WHEN THE QUESTION OF REMOVING

THE CHILD FROM THE CUSTODIAL PARENT IS IN-

VOLVED, WE SUBMIT THAT THIS CouRT, BY ITS

OPINION, TACITLY FINDS THAT THESE TRANS@

GRESSIONS BY JOHN THOMPSON WILL NOT EFFECT

THE CHILD,

-115-

IT 1S SUBMITTED THAT THIS COURT HAS

REMOVED ANY MORAL CONSIDERATIONS IN REVIEW"

ING THIS CASE AND HAS IN FACT GONE AGAINST

THE MANDATE OF THE JARRETT CASE,

I]

THIS CouRT, HOWEVER, DID NOT OVERRULE

THE JARRETT CASE IN ITS OPINION BUT MERELY

FAILED TO APPLY IT, THE AFFECT OF THIS RUL-

ING IN THIS CASE (LEAVING THE JARRETT OPIN-

ION STANDING UNREVERSED) IS TO LET TRIAL

JUDGES AWARD CUSTODY WITHOUT ANY GUIDELINES,

YARDSTICKS, REASON, OR LAW WHATSOEVER, WE

SUBMIT WITH THESE TWO CASES, THIS CASE AND

THE JARRETT CASE, COMPLETELY CONTRADICTORY

OF EACH OTHER, THE TRIAL CouRT IS PRETTY

MUCH LEFT TO DO WHATEVER IT DESIRES TO DO

WITH A CUSTODY CASE. INDEED, WE SUBMIT THESE

TWO CASES CONTRADICTING EACH OTHER, RESULT

IN THE TRIAL JUDGE HAVING NO LAW WHICH HE IS

OBLIGED TO FOLLOW IN THESE CASES AND THAT

THEREFORE HIS DECISION COULD COME AS THE

-116-

RESULT OF HIS WHIM, CAPRICE, BIAS, PREJUDICE,

OR ARBITRARINESS,

WE SUBMIT THAT THE NET EFFECT OF THIS

DECISION WILL BE TO CAUSE MANY MORE CASES

TO BE LITIGATED ON THE QUESTION OF CUSTODY

SINCE THERE IS INDEED NO YARDSTSICK OR NO

LAW FOR THE LOWER COURTS TO FOLLOW IN DETER-

MINING WHICH PARENT SHOULD GET CUSTODY,

THE PHRASE, “THE BEST INTEREST OF THE

CHILD”, IS AN EMPTY PHRASE WITHOUT LOOKING

AT THE QUALIFICATIONS OR LACK OF QUALIFICATIONS

OF THE PARENTS AND REALLY IS MEANINGLESS IN

TERMS OF THIS OPINION INSOFAR AS WHAT THE

PARENTS HAVE DONE OR FAILED TO DO AS AFFECT-

ING THE FINAL DISPOSITION OF THE CASE,

WE SUBMIT THAT ANOTHER ADVERSE EFFECT

OF THIS OPINION WILL BE TO FORCE PARENTS

OF CHILDREN TO STAY MARRIED IN UNDESIRABLE

MARRIAGES RATHER THAN RISK THE LOSS OF CUS~

TODY OF THEIR CHILDREN. JHE PUBLIC, THAT IS

THE PARENTS, WHO MIGHT BE LITIGATING CUSTODY

wt fhe

QUESTIONS IN THE FUTURE, BECAUSE OF THIS

CASE, WILL NOT KNOW HOW TO CONDUCT THEMSEL™

VES IN ORDER TO PROTECT THEIR CUSTODIAL

RIGHTS WITH THEIR CHILDREN SINCE INDEED THIS

AMOUNTS AND IS TANTAMOUNT TO NO RULE OR LAW

AT ALL FOR THE COURTS TO FOLLOW IN FUTURE

CASES,

11]

CONSTITUTIONAL ARGUMENT

WHEN THIS COURT TREATED THE UNIFORM

CHILD Custopy JURISDICTION ACT, AND ESPEC-

TIALLY Sec, 2109 THEREOF oF CHAPTER 40 oF

THE ILL. REV, STATS., AS A MATTER OF PROCE-

DURE RATHER THAN SUBSTANCE UNDER THE FACTS

IN THIS CASE, IT EFFECTIVELY DENIED KATH-

RYN MAE THOMPSON HER RIGHTS UNDER THE

UNITED STATES CONSTITUTION, SECTION l,

ARTICLE 4, WHICH PROVIDES, “FULL FAITH AND

CREDIT SHALL BE GIVEN IN EACH STATE TO PUB~

-118-

LIC ACTS, RECORDS, AND JUDICIAL PROCEEDINGS

OF EVERY OTHER STATE,”

WE SUBMIT THAT WHEN THE ILLINOIS CourTS,

INCLUDING THIS COURT, SAW THAT THE CHILD WAS

FORCIBLY REMOVED FROM KATHY IN THE STATE

OF MICHIGAN, WHEN SHE HAD A MICHIGAN CourRT

ORDER GIVING HER CUSTODY OF THE CHILD, THEN

THE ILLINOIS COURTS SHOULD HAVE GIVEN FULL

FAITH AND CREDIT TO THAT CourT ORDER OF THE

STATE OF MICHIGAN, WHICH THEY DID NOT DO, WE

SUBMIT THAT UPON THE ILLINOIS COURTS DETER™

MINING THAT THE CHILD WAS FORCIBLY ABDUCTED

FROM THE MOTHER IN THE STATE OF MICHIGAN

UNDER THE FACTS OF THIS CASE, THEN THEY

SHOULD HAVE GIVEN FULL FAITH AND CREDIT TO

THE MICHIGAN CusToDY ORDER AND ORDERED THE

CHILD RETURNED TO MICHIGAN. FAILURE TO DO

SO VIOLATED KATHRYN MAE THOMPSON'S RIGHTS

UNDER THE FULL FAITH AND CREDIT CLAUSE OF

OF THE UNITED STATES CONSTITUTION SET OUT

ABOVE,

“159°

WE SUBMIT FURTHER THAT THE REFUSAL OF

THE ILLINOIS COURTS TO GIVE FULL FAITH AND

CREDIT TO THE MICHIGAN CusToDY ORDER AFTER

THEY LEARNED HOW JOHN THOMPSON GoT CUSTODY IN

MICHIGAN OF THE CHILD MAKES THE ILLINOIS

COURTS APPEAR TO GIVE APPROVAL OF THESE AC™

TIONS, THIS, IN ADDITION TO DENYING KATHRYN

THOMPSON HER RIGHTS UNDER THE FULL FAITH

AND CrepIT CLAUSE oF THE UNITED STATES CON-

STITUTION,

KATHRYN MAE THOMPSON WAS DENIED HER

RIGHTS TO DUE PROCESS OF LAW UNDER THE

FEDERAL CONSTITUTION BEING THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTITUTION

WHICH PROVIDES, “NOR SHALL ANY STATE DEPRIVE

ANY PERSON OF LIFE, LIBERTY, OR PROPERTY

WITHOUT DUE PROCESS OF LAW,” AND ARTICLE 1

OF SECTION 2 OF THE ILLINOIS CONSTITUTION

WHICH PROVIDES, “NO PERSON SHALL BE DEPRIVED

OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE

PROCESS OF LAW.” WE STATE THAT HER RIGHTS

-120-

UNDER BOTH OF THESE DUE PROCESS CLAUSES,

THAT IS THE FEDERAL AND STATE DUE PROCESS

CLAUSES, WERE DENIED BY:

A, UNDER THE TOTAL FACTS OF THIS CASE

THE AWARDING OF CUSTODY OF DANNY TO JOHN

THOMPSON, AND DENYING CUSTODY TO HIS MOTHER,

DENIES HER, HER RIGHTS UNDER THE DUE PROCESS

CLAUSES OF THE FEDERAL AND STATE CONSTI TU-

TION SET OUT ABOVE,

B, THe CourT IN FAILING TO OVERRULE

THE LAW OF THE JARRETT CASE, BUT REFUSING

TO APPLY THE RULE IN IT TO THIS CASE AT BAR,

HAS CREATED A SITUATION WHERE THERE IS IN-

DEED NO LAW TO GOVERN THE DISPOSITION OF

CUSTODY CASES IN THE STATE OF ILLINOIS. THERE

ARE NO YARDSTICKS TO FOLLOW. IT LEAVES THE

JUDGE FREE TO ALLOW HIS WHIM, CAPRICE, BIAS

OR ARBITRARINESS, THE FACT THAT THERE IS

NO LAW IN THE STATE OF ILLINOIS TO GOVERN

THIS TYPE OF SITUATION DENIED KATHRYN MAE

THOMPSON DUE PROCESS OF LAW IN THE LOSS OF

-12i-

THE CUSTODY OF HER SON, DANNY.

THE NET RESULT OF THIS CASE, LEAVING

THE RULE ANNOUNCED IN THE JARRETT CASE

UNREVERSED, IS TO RESULT IN NO LAW AT ALL

FOR THE PEOPLE OF THE STATE OF ILLINOIS,

ITS JUDGES AND ATTORNEYS TO FOLLOW IN A

CUSTODY CASE, BUT PERMITS THE TRIAL CourRT TO

ACT ACCORDING TO HIS OR HER PERSONAL BIAS,

PREJUDICE, WHIM OR CAPRICE. KATHRYN MAE

THOMPSON HAS BEEN DENIED HER RIGHTS TO

DUE PROCESS OF LAW UNDER THE ILLINOIS AND

FEDERAL CONSTITUTIONS,

CONCLUSION

WE SUBMIT THAT ALTHOUGH THIS CouRT CON-

DEMNED JOHN THOMPSON‘S use OF FORCE AND SELF-

HELP TO TAKE THE MINOR CHILD OF THE PARTIES

WITHOUT DUE PROCESS OF LAW FROM THE CHILD’S

MOTHER IN THE STATE OF MICHIGAN, THIS COURT

NEVERTHELESS REWARDED JOHN THOMPSON By

APPROVING THE AWARD OF THE CHILD TO HIM,

THIS, WE SUBMIT, WILL ENCOURAGE OTHERS TO

~ien

USE SELF-HELP, FORCE AND VIOLENCE TO RETAKE

CHILDREN FROM THEIR SPOUSES IN OTHER JURIS-

DICTIONS BECAUSE IN THE BOTTOM LINE IT

REALLY DOESN’T MAKE ANY DIFFERENCE IF A PARTY

USES FORCE TO RETAKE A CHILD FROM THE OTHER

PARENT OUTSIDE OF ILLINOIS,

FOR THE VARICUS REASONS EXPRESSED HEREIN,

AND BECAUSE OF THE VIOLATION OF THE CONSTIT-

UTIONAL RIGHTS OF KATHRYN MAE THOMPSON, we

ASK THIS COURT TO GRANT A REHEARING OF THIS

CAUSE AND REVERSE ITS DECISION ON THE QUESTION

OF CUSTODY OF DANNY THOMPSON,

RESPECTFULLY SUBMITTED,

THOMAS J, LOGUE

GLENN & LOGUE, ATTORNEYS

901 CHARLESTON AVENUE

MATTOON, ILLINOIS 61938

ATTORNEY FOR KATHRYN MAE THOMPSON,

PETITIONER,

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IN THE CIRCUIT COURT

FOR THE FIFTH JUDICIAL CIRCUIT

OF ILLINOIS

COLES COUNTY, CHARLESTON, ILLINOIS

IN RE: THE MARRIAGE OF

JOHN DELANCE THOMPSON

AND

)

)

)

NO. 79-D-363

)

KATHRYN MAE THOMPSON )

JUDGMENT OF DISSOLUTION OF MARRIAGE

Now ON THIS 1/TH DAY oF DeEcEmMBER, 1980,

THIS CAUSE COMES ON FOR HEARING ON PETITION

FoR DISSOLUTION OF MARRIAGE AND RESPONSE

THERETO, COUNTER-PETITION FOR DISSOLUTION

OF MARRIAGE AND RESPONSE THERETO, BOTH PART-

IES PRESENT IN COURT IN PERSON AND BY COUN-

SEL, EVIDENCE HEARD AND THE COURT BEING

OTHERWISE FULLY ADVISED IN THE PREMISES,

FINDS:

(1) THAT PETITIONER AND COUNTER-

RESPONDENT, JOHN DELANCE THOMPSON, Is, ON

THE DAY OF THE HEARING AND HAS BEEN FOR

—-19Ij—

MORE THAN 90 DAYS PRIOR THERETO, DOMICILED

IN THE STATE OF ILLINOIS AND THAT RESPONDENT

AND COUNTER-PETITIONER, KATHRYN MAE THOMPSON,

WAS 90 DAYS PRIOR TO THE FILING OF THE

PETITION HEREIN DOMICILED IN THE STATE OF

ILLINOIS,

(2) THAT PETITIONER AND COUNTER-

Responpent, JOHN DELANCE

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WN

NO

YEARS OF AGE, EMPLOYED, AND A RESIDENT OF

HIGHLAND, ILLINOIS, RESPONDENT AND COUNTER-

PetiTIoNerR, KATHRYN MAE THOMPSON, 1S 26 YEARS

OF AGE, EMPLOYED, AND PRESENTLY RESIDES IN

KAWKAWLIN, MICHIGAN,

(3) THE PARTIES WERE MARRIED ON Nov-

EMBER 16, 1973 AND THAT MARRIAGE WAS REGIS~

TERED IN WATERFORD, OAKLAND CounTy, MICHI-

GAN,

(4) WITHOUT PROVOCATION ON THE PART

oF CouNTER-PETITIONER, GROUNDS OF EXTREME

AND REPEATED MENTAL CRUELTY EXIST FOR THE

“leo”

DANIEL CLARK THOMPSON AND HE WAS BORN ON

Aprit 18, 1977. No OTHER CHILDREN HAVE

BEEN BORN OR ADOPTED TO THE PARTIES AS A

RESULT OF THIS MARRIAGE AND RESPONDENT

AND COUNTER-PETITIONER, KATHRYN MAE THOMP-

SON, IS NOT NOW PREGNANT. BOTH PARTIES

ARE FIT AND PROPER PERSONS TO HAVE THE

CARE, CUSTODY AND CONTROL OF THE MINOR

CHILD OF THE PARTIES AND THE BEST INTEREST

OF THE MINOR CHILD WOULD BE SERVED IF HIS

CUSTODY I$ PLACED WITH PETITIONER AND

CoUNTER-RESPONDENT, JOHN DELANCE THOMPSON,

(6) THE PARTIES HAVE ACQUIRED BOTH

REAL AND PERSONAL MARITAL PROPERTY DURING

THE MARRIAGE,

IT 1S, THEREFORE, ORDERED, ADJUDGED

AND DECREED AS FOLLOWS:

(A) THE MARRIAGE HERETOFORE ENTERED

-126-

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(B) THE CARE, CUSTODY, CONTROL AND

EDUCATION OF THE MINOR CHILD OF THE PARTIES

IS HEREBY AWARDED TO PETITIONER AND COUNTER-

RESPONDENT, JOHN DELANCE THOMPSON, ReEspoN-

ry ~ VY weeve AP NIT OT TATIN rImts _

INCLUDE SIX WEEK UP VISITATION DURING THE

Cc

Cimwmepo Meir ¢ ATT 7 i in - a = . Cc . D

SUMMER MONTHS, SAID VISI \TION SHALL BE

WITHIN THE STATE OF ILLINOIS UNLESS RESPON-

DENT AND COUNTER-PETITIONER, KATHRYN MAE

THOMPSON, peposits A $1,000.00 cAsH or

PROPERTY BOND CONDITIONED UPON HER RETURN OF

HE CHILD TO THE CUSTODIAL PARENT AT THE

END OF THE VISITATION PERIOD,

(c) ALL PERSONAL PROPERTY NOT OWNED BY

EITHER OF THE PARTIES PRIOR TO THE MARRIAGE

AND OTHER THAN THE PERSONAL EFFECTS AND

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DADT

PARTY,

ENTER: JUDGE

APPROVED:

THOMAS J. LOGUE

ATTORNEY FOR RESPONDENT AND

COUNTER-PETITIONER

-128-

JANUARY 27, 198]

Mr, LAURENCE GRABB

= INI & BENNETT

Mr. THOMAS LOGUE

GLENN & LOGUE

901 CHARLESTON

MaTToon, IL 61938

RE: THOMPSON VS, THOMPSON

THE MARRIAGE INVOLVED WAS OF RELATIVELY

SHORT DURATION, THERE IS NO INDICATION THAT

THERE WAS ANY INTENTION TO MAKE A GIFT OF

ONE-HALF OF THE NON-MARITAL HOUSE AS WAS

CONTENDED IN KEY, THIS CouRT WAS HOPING

THAT THE ILLINOIS SuPREME COURT WOULD BE

DECIDING WHETHER THE TRANSMUTATION THEORY

WOULD BE ADOPTED IN ILLINOIS, THIS ISSUE

WILI. BE DECIDED LATER WHEN IT RULES ON

IN RE MARRIAGE OF ATKINSON LATER THIS YEAR,

IF THE PARTIES WISH, THE REAL PROPERTY

QUESTION CAN BE DEFERRED UNTIL ATKINSON

-129-

CANNOT DECIDE ON THE

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DIVISION OF PERSONAL PROPERTY, ALL WIILL BE

SOLD, OTHER THAN PERSONAL EFFECTS AND NON™

EQUALLY,

CustoDy:

THE COURT FEELS EITHER PERSON QUALIFIED

TO RAISE THE CHILD IN QUESTION, ALTHOUGH

SERVATIONS AS TO BOTH, DUE TO

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THERE ARE R

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THE INTEREST SHOWN BY THE FATHER AND THE

LACK OF SAME BY THE MOTHER, THE CUSTODY

WILL BE PLACED WITH THE FATHER, LIBERAL

IN STATE VISITATION IS GRANTED, OR IFA

$1,000 CASH OR PROPERTY BOND IS FILED

AND APPROVED, LIBERAL OUT OF STATE VISITA~

TION CAN BE ARRANGED,

IF THE PARTIES WISH TO HAVE THE COURT

DECIDE THE PROPERTY (REAL) ISSUE NOW, PLEASE

ADVISE,

-130-

WrtL Mr. GRABB PREPARE AN ORDER IN

ACCORDANCE WITH THIS LETTER,

YOURS VERY TRULY,

JAMES R, WATSON

JRW: UDL

May 27, 1983

Mr, THOMAS J. LOGUE

ATTORNEY AT LAW

901 CHARLESTON AVENUE

Mattoon, IL 61938

No, 55948 - JoHN DELANCE THOMPSON, APPELLEE,

vs, KATHRYN MAE THOMPSON, APPELLANT.

AppeaAL, APPELLATE CourT, FOURTH

DISTRICT,

THE SuPREME CourT TODAY DENIED THE

PETITION FOR REHEARING IN THE ABOVE ENTITLED

CAUSE, THE MANDATE OF THIS COURT WILL

ISSUE TO THE APPROPRIATE APPELLATE CourT,

CrrcurT CouRT OR OTHER AGENCY ON JUNE 3,

1983,

VERY TRULY YOURS,

JULEANN HORNYAK

CLERK OF THE SuPREME CouRT

~iii~