{ "id": 2633369, "name": "JAMES WELLS, Plaintiff-Appellant, v. JUDITH A. WELLS, Defendant-Appellee", "name_abbreviation": "Wells v. Wells", "decision_date": "1976-03-11", "docket_number": "No. 74-233", "first_page": "488", "last_page": "491", "citations": [ { "type": "official", "cite": "36 Ill. App. 3d 488" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "299 Ill. 438", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5023478 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ill/299/0438-01" ] }, { "cite": "217 Ill. App. 548", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2992064 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/ill-app/217/0548-01" ] }, { "cite": "21 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379735 ], "year": 1974, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0550-01" ] }, { "cite": "14 Ill. App. 2d 242", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5173260 ], "year": 1957, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0242-01" ] }, { "cite": "57 Ill. App. 2d 286", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2598362 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "290" }, { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0286-01" ] }, { "cite": "69 Ill. App. 2d 302", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2592904 ], "year": 1966, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0302-01" ] }, { "cite": "13 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5346273 ], "year": 1973, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0087-01" ] }, { "cite": "32 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2794882 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "871" }, { "page": "870" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0869-01" ] }, { "cite": "75 Ill. App. 2d 362", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579013 ], "year": 1966, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0362-01" ] }, { "cite": "411 Ill. 408", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313382 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "415" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill/411/0408-01" ] } ], "analysis": { "cardinality": 465, "char_count": 7389, "ocr_confidence": 0.732, "pagerank": { "raw": 3.104293491362817e-07, "percentile": 0.8595485682756022 }, "sha256": "884ba594f4e0dd877372627cbec02643dc454dc5400fca33770a40aea5f49395", "simhash": "1:dff30541760ce7a5", "word_count": 1224 }, "last_updated": "2023-07-14T20:55:53.941211+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES WELLS, Plaintiff-Appellant, v. JUDITH A. WELLS, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court;\nThis is an appeal from an order of March 29, 1974, modifying a decree of divorce by removing the custody of two minor da\u00faghters, then aged 13 and 9, from the father, and placing it with the mother. The father appeals, claiming that the order changing custody was an abuse of judicial discretion in that there was no change in circumstances relative to the childrens welfare which warranted the change of custody and that he (the father) has a superior right to the minor children, all other things being equal.\nThe parties to this appeal separated in 1968 and the children spent the next two years with the paternal grandparents in downstate Illinois. The four years thereafter were spent with their father, to whom custody was awarded in the divorce decree. The children were apparently placed in the temporary custody of their mother in late 1973 or early 1974, following an incident to be discussed later, and have remained with her since then.\nOne of the causes for the break-up of the Wells\u2019 marriage was the wife\u2019s extramarital relationships with various men, including the man who, five years later, became her second husband. She has subsequently been divorced from her second husband. One of the factors which led to her decision to end the second marriage was her second husband\u2019s unwillingness to allow her children to live in the home with them. The children\u2019s father did not remarry.\nBoth parents are employed and have suitable homes, within their means, in which to raise the girls. The remaining evidence, regarding the fitness of the respective parties for custody of the children is in conflict. There were allegations against each party of excessive drinking, uncontrollable temper, bodily threats against those who might play a part in tire custody battle and disturbed sexuality. Also before the court was evidence that the children fear their father, that he disciplines them with a strap, and that both children are somewhat emotionally disturbed.\nIn an apparent attempt to be removed from her father\u2019s custody, the older daughter accused her father of taking indecent liberties with her\u2014 an accusation which led to a criminal complaint against him. The charge was eventually dismissed on the basis of results of a polygraph test to which both the father and daughter submitted themselves, and the daughter subsequently admitted she had lied regarding her father\u2019s sexual advances to her. As noted above, the children were apparently awarded to the temporary custody of their mother about the time of the criminal charges and they have been with her since.\nAn investigatory report by a social worker for the family division was requested by the court and filed in this case. It indicated that the daughters were afraid of their father, were adamant in their refusal to consider returning to his home, and were insistent that if returned to their father\u2019s custody, they would run away.\nThe guiding principle in child custody cases is the best interests of the children. (Nye v. Nye, 411 Ill. 408, 415 (1952).) As pointed out in Strouse v. Strouse, 75 Ill. App. 2d 362, 363 (1966), this principle is more easily enunciated than applied.\nThe trial court has broad discretion to modify custody provisions because questions regarding a child\u2019s welfare primarily involve questions of fact, and because the trial judge is in the best position to hear the evidence, make pertinent inquiry, and evaluate the candor and credibility of the witnesses. Its decision, though subject to review, will not be disturbed unless it is palpably erroneous (Anderson v. Anderson, 32 Ill. App. 3d 869, 871 (1975)), or unless the trial court abused its discretion or the order is contrary to the manifest weight of the evidence, (McDonald v. McDonald, 13 Ill. App. 3d 87, 90 (1973)), or unless it appears that manifest injustice has been done. Hahn v. Hahn, 69 Ill. App. 2d 302, 305 (1966).\nThe courts are mindful that stability in a child\u2019s environment is a weighty factor (Stickler v. Stickler, 57 Ill. App. 2d 286, 290 (1965)), and, in that concern, a sound principle of law has evolved: custody will not be altered unless there has been a change in circumstance which involves the child\u2019s welfare. (See Nye v. Nye, 411 Ill. 408, 416 (1952); Dunning v. Dunning, 14 Ill. App. 2d 242, 250 (1957).) One of the factors to be considered in a change of custody action is the preference of the child involved (Rosenberger v. Rosenberger, 21 Ill. App. 3d 550, 553 (1974)), although it has been repeatedly stated by the Illinois courts that the child\u2019s preference for a change of custodial parent, without showing that the welfare of the child is affected, is not a sufficient change of circumstances to warrant a custody change. (Stickler v. Stickler, 57 Ill. App. 2d 286, 289 (1965).) When the child\u2019s desire, however, is based upon reasons related to its best welfare, the child\u2019s preference should be given serious consideration. Anderson v. Anderson, 32 Ill. App. 3d 869, 870 (1975).\nWe cannot say the trial court abused its discretion in awarding the children\u2019s custody to the mother, or that its decision is palpably erroneous, or that manifest injustice has been done. This is not a case where one or the other parent is clearly best suited to have custody. The trial court heard lengthy testimony on both sides, recurrently interrogated the witnesses personally, ordered a custody investigation, and interviewed the children alone in chambers. The trial court was in the best position to evaluate the credibility of the witnesses and the needs of the children. Although the children\u2019s preference for their mother\u2019s custody by itself is not sufficient change in circumstance, when considered in connection with their apparent fear of their father, their emotional instability, and the older daughter\u2019s desperate attempt to be free of him through falsification of a criminal charge against him, we feel the court was justified in finding sufficient change in circumstances related to the children\u2019s welfare to warrant a change in their custody.\nThe plaintiff\u2019s second argument \u2014 that as between the father and the mother of a minor child, the father has the superior right to its custody, all things being equal \u2014 is without merit. Although language to this effect was used in the appellate case of Stafford v. Stafford, 217 Ill. App. 548 (1920), the statement was merely dicta. That case was a battle between the child\u2019s father and the child\u2019s aunt for the guardianship of the child, the child\u2019s mother being dead. Although the Illinois Supreme Court affirmed the decision in Stafford (299 Ill. 438 (1921)), it did not do so on the asserted grounds. Moreover, we have found no Illinois case holding that as between the natural mother and natural father of a child, the father\u2019s rights to its custody are superior, all things being equal. Indeed, in the long line of Illinois cases descendant from Nye v. Nye, there is a clear, opposite implication.\nFor the above reasons we affirm the order of the trial court.\nAffirmed.\nRECHENMACHER, P. J., and DIXON, J., concur.", "type": "majority", "author": "Mr. JUSTICE THOMAS J. MORAN" } ], "attorneys": [ "Samuel E. Hirsch, of Chicago, for appellant.", "Goldsmith, Dyer, Thelin, Schiller & Dickson, of Aurora, for appellee." ], "corrections": "", "head_matter": "JAMES WELLS, Plaintiff-Appellant, v. JUDITH A. WELLS, Defendant-Appellee.\nSecond District (2nd Division)\nNo. 74-233\nOpinion filed March 11, 1976.\nSamuel E. Hirsch, of Chicago, for appellant.\nGoldsmith, Dyer, Thelin, Schiller & Dickson, of Aurora, for appellee." }, "file_name": "0488-01", "first_page_order": 514, "last_page_order": 517 }