In re Custody of D.R.

No. 2 97 0456
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re CUSTODY OF D.R. ) Appeal from the Circuit Court
) of Kane County.
(Yvette Meeks, Petitioner- )
Appellant, and Martin Reynolds, ) 89 F 301
Respondent-Appellee). )
) Honorable
) James C. Hallock,
) Judge, Presiding.
________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

Petitioner, Yvette Meeks, appeals the order of the circuit
court of Kane County awarding custody of D.R. to respondent, Martin
Reynolds. We affirm.
D.R. was born on June 25, 1986. On May 25, 1989, the trial
court entered an order of parentage finding respondent to be D.R. s
father and requiring respondent to pay child support. D.R. resided
with his mother from birth until 1994. Beginning in 1994, D.R. has
occasionally resided with his father. Both parties have filed
petitions to modify the level of child support since the trial
court s original May 25, 1989, order.
On February 13, 1996, respondent filed a petition to change
D.R. s custody and to abate child support. At a March 6, 1996,
hearing, both parties appeared in court pro se and advised the
trial court that D.R. was living with respondent. The trial court
continued respondent s petition to change custody, temporarily
abated respondent s child support obligation, and appointed a
guardian ad litem for D.R. On August 14, 1996, petitioner filed a
motion to restore D.R. s custody to her and to reinstate
respondent s child support obligation.
At the September 4, 1996, hearing, petitioner informed the
court that she did not return D.R. to respondent following a
visitation. On September 11, 1996, the guardian ad litem gave his
preliminary report to the court. The court awarded petitioner
temporary physical possession of D.R., ordered visitation for
respondent, and ordered both parties to cooperate with the guardian
ad litem.
On October 24, 1996, the guardian ad litem filed his report
with the court. At the status hearing that day, petitioner was
found to be in direct criminal contempt of court as a result of her
actions before the court and was placed in the county jail for 30
days. The trial court found that petitioner could not care for
D.R. because of her incarceration and awarded respondent temporary
custody with the requirement that D.R. continue his enrollment in
Bardwell School in Aurora.
On November 27, 1996, petitioner filed an Emergency Petition
for Visitation. Respondent failed to appear for the hearing on
the petition, and the court entered an order setting a visitation
schedule for the Thanksgiving holiday through the middle of
December.
On December 30, 1996, the trial court heard evidence on the
parties custody motions. On that date, D.R. was still residing
with petitioner because she had failed to return the child after
her scheduled visitation. Respondent was unable to recover the
child even though he attempted to do so with the aid of the police.
On February 28, 1997, the trial court awarded custody of D.R.
to respondent. The trial court based its decision on the best
interests of D.R. as set forth in section 602 of the Illinois
Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS
5/602 (West 1996)). The trial court found that, while there was
evidence of respondent spanking D.R., respondent s home provided
D.R. with structure and discipline. The court also found that D.R.
fared better socially and academically there than when he was
residing with his mother. Additionally, the trial court expressed
concern over D.R. s behavior mirroring that of petitioner, stating
that petitioner was an inappropriate role model. The court also
found that respondent s testimony was significantly more credible
than petitioner s and that petitioner was a mother and custodial
parent only when it suited her present whim.
On March 18, 1997, petitioner filed a motion to reconsider,
which was denied. The same day, the court entered an order fixing
petitioner s visitation. On April 7, 1997, the court entered an
order requiring petitioner to pay respondent child support.
Petitioner s timely appeal followed.
Initially, we note that respondent did not file a brief in
this appeal. However, because the issues are straightforward, we
can resolve them without the aid of an appellee s brief. First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
Petitioner first contends that the trial court erred in
modifying its original custody order. Petitioner argues that, in
order to modify a custody order, the party seeking the modification
must satisfy the requirements of section 5/610(b) of the Marriage
Act (750 ILCS 5/610(b) (West 1996)) and show, by clear and
convincing evidence, that a change in circumstances has occurred
since the entry of the prior judgment. Petitioner asserts that
respondent failed to demonstrate any change of her or D.R. s
circumstances, much less by clear and convincing evidence, and
that, therefore, the trial court improperly changed D.R. s custody
to respondent.
Petitioner s argument is apparently based on section 14(a)(2)
of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS
45/14(a)(2) (West 1996)). Section 14(a)(2) provides that [i]f a
judgment of parentage contains no explicit award of custody, the
establishment of a support obligation or of visitation rights in
one parent shall be considered a judgment granting custody to the
other parent. 750 ILCS 45/14(a)(2) (West 1996). As the May 25,
1989, judgment of paternity ordered respondent to pay child
support, petitioner apparently views this as the original order of
custody. The Parentage Act further provides that the trial court
has continuing jurisdiction to modify an order for support,
custody, or visitation included in a judgment entered under [the
Parentage Act] *** in accordance with the relevant factors
specified in the Marriage Act. 750 ILCS 45/16 (West 1996). Thus,
petitioner appears to conclude that section 610(b) of the Marriage
Act controls the modification of the original custody judgment.
Petitioner s argument, however, is premised on the assumption that
section 14(a)(2) of the Parentage Act applies in this case.
The parentage action was instituted on April 3, 1989, and the
judgment of parentage was entered on May 25, 1989. On August 30,
1989, the Parentage Act was amended to add section 14(a)(2).
Before the amendment, section 14 of the Parentage Act did not make
any provision for the custody of the child where the judgment
lacked an explicit award of custody. Compare 750 ILCS 45/14(a)
(West 1996) with Ill. Rev. Stat. 1987, ch. 40, par. 2514(a).
The first issue we must address, therefore, is whether the
amendment to the Parentage Act should apply retroactively to this
case. Generally, amendments effecting a substantive change to the
existing law are prospectively applied, while amendments changing
procedural rights or remedies will be retroactively applied.
Harraz v. Snyder, 283 Ill. App. 3d 254, 259 (1996). The
presumptively prospective effect of a substantive amendment may be
rebutted by the act itself. Harraz, 283 Ill. App. 3d at 260. We
conclude that the amendment adding section 14(a)(2) to the
Parentage Act must be given prospective effect. First, the
amendment is substantive. Before the amendment, if the parentage
judgment omitted mention of custody, no custody was established or
presumed. After the amendment, custody is affirmatively granted to
the parent receiving child support, even in the absence of an
explicit reference to custody in the judgment of parentage. Thus,
the amendment creates a new right where none existed before.
Second, there is no indication in either the public act amending
the statute or the language of the statute itself that the
legislature intended the amendment to apply retroactively. Thus,
section 14(a)(2) does not apply in this case.
Because section 14(a)(2) does not apply in this case, the
trial court was making an original determination of custody in its
February 28, 1997, order. When making an initial determination of
custody, a court must use the best interest standard of section
602 of the Marriage Act (750 ILCS 5/602 (West 1996)). See In re
Koca, 264 Ill. App. 3d 291, 294 (1993). Accordingly, we conclude
that the trial court correctly applied section 602 of the Marriage
Act (750 ILCS 5/602 (West 1996)) to the circumstances of this case.
While we note that other cases have applied section 14(a)(2)
of the Parentage Act to orders of parentage entered before the
effective date of the amendment, we find them to be
distinguishable. See Kocal v. Holt, 229 Ill. App. 3d 1023 (1992)
(parentage order entered in March 1987); In re Upmann, 200 Ill.
App. 3d 827 (1990) (parentage order entered on September 19, 1988).
Both Kocal and Upmann assumed, without any analysis or
justification, that the amendment creating section 14(a)(2) would
apply retroactively. Additionally, Upmann found that the parentage
order did not address custody, visitation, or support and, by
explicitly providing for further proceedings, was not a final
order. Upmann, 200 Ill App. 3d at 833-34.
Petitioner next contends that the trial court erred by
determining that the award of custody to respondent was in D.R. s
best interest. Section 602 of the Marriage Act governs the court s
determination of the child s best interest (750 ILCS 5/602 (West
1996)). Among the factors the court is to consider when
determining the child s best interest are
(1) the wishes of the child s parent or parents as to
his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child
with his parent or parents, his siblings and any other
person who may significantly affect the child s best
interest;
(4) the child s adjustment to his home, school and
community;
(5) the mental and physical health of all individuals
involved;
(6) the physical violence or threat of physical
violence by the child s potential custodian, whether
directed against the child or directed against another
person;
(7) the occurrence of ongoing abuse *** whether
directed against the child or directed against another
person; and
(8) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship
between the other parent and the child. 750 ILCS 5/602(a)
(West 1996).
The custody determination is left to the trial court s
discretion. Because the determination of the child s best interest
is a factually intensive exercise, a reviewing court will defer to
the trial court s determination because the trial court is in the
best position to evaluate the parties, witnesses, and the
credibility and demeanor of each. We will not disturb the trial
court s custody determination unless it is against the manifest
weight of the evidence. In re Marriage of Petraitis, 263 Ill. App.
3d 1022, 1031 (1993). A judgment is against the manifest weight
of the evidence when an opposite conclusion is apparent, or when
the findings appear to be unreasonable, arbitrary or not based upon
the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996).
We have carefully examined the record in this case and
conclude that the trial court s determination was not against the
manifest weight of the evidence. The trial court gave careful
consideration to each of the factors enumerated in section 602(a).
Petitioner s assertions that the trial court did not consider
D.R. s wishes or the stability of D.R. s environment simply are not
supported by the record.
Petitioner also contends that the court gave insufficient
consideration to petitioner s role as primary caretaker.
Petitioner s argument boils down to her own view of how the court
should have interpreted the evidence. She faults the trial court
for failing to consider testimony that respondent s girlfriend and
respondent allow the girlfriend s 14-year-old daughter to come and
go as she pleases and for failing to consider the effect of yet
another change of physical possession on D.R. We disagree. The
record clearly indicates that the trial court carefully considered
all of the evidence in conjunction with the relevant factors in
determining where D.R. s best interest lay. We cannot say that the
trial court s custody determination was against the manifest weight
of the evidence.
Petitioner also contends that the trial court was unfairly
prejudiced against her as a result of her outburst during the
October 24, 1996, hearing. We reject this contention. The trial
court mentioned her outburst in its decision only as an example of
the type of negative behavior it found D.R. to be imitating. We
find no support for petitioner s contention in the record.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
McLAREN and HUTCHINSON, JJ., concur.