{
  "id": 3275175,
  "name": "In re CUSTODY OF NICOLE BURNETT. - (GABRIELE E. BURNETT, Petitioner-Appellant, v. JAMES W. BURNETT, Respondent-Appellee.)",
  "name_abbreviation": "Burnett v. Burnett",
  "decision_date": "1979-08-21",
  "docket_number": "No. 78-537",
  "first_page": "998",
  "last_page": "1001",
  "citations": [
    {
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      "cite": "75 Ill. App. 3d 998"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
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  "last_updated": "2023-07-14T14:33:33.109776+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "In re CUSTODY OF NICOLE BURNETT. \u2014 (GABRIELE E. BURNETT, Petitioner-Appellant, v. JAMES W. BURNETT, Respondent-Appellee.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE NASH\ndelivered the opinion of the court:\nPetitioner, Gabriele Burnett, appeals from an order denying her petition to modify provisions of a divorce decree which awarded custody of the parties\u2019 daughter to respondent, James Burnett.\nJames and Gabriele Burnett were married in April of 1968, and Nicole, their only child and the subject of this litigation, was bom later that year. On January 25, 1974, the marriage was dissolved, and custody of Nicole was awarded by agreement to James. He remarried in the spring of 1976 and animosity developed between Nicole and her stepmother, Linda, and as a result, James relinquished physical custody to Gabriele on June 4, 1976, with whom she resided thereafter until April 1978. James testified that he intended this arrangement to be only temporary, and that he had made his intent clear to Gabriele. Gabriele, on the other hand, testified that the change in custody was mutually understood to be permanent.\nDuring the 22 months in which she resided with her mother, Nicole completed the third and fourth grades at a local elementary school and acquired a number of neighborhood friends. Gabriele participated in parent-teacher conferences at the school and took Nicole on a number of vacations including trips to West Germany, New Orleans and Pennsylvania. The two enjoyed various recreational activities together including roller skating and attending movies. James divorced Linda four months after relinquishing custody of Nicole but did not seek to regain custody at that time. In early 1977 he began living with a woman named Angela, a relationship which continued until March 1978. It was not until January 1978 that he visited Nicole on a regular basis; prior to that time he had seen her on two or three occasions in 1977.\nOn April 21, 1978, Gabriele filed the petition seeking to modify the divorce decree and gain permanent custody of Nicole. Shortly after receiving notice of the petition and without informing Gabriele, James reestablished custody by picking up Nicole one day at school and she has since resided with her father on his farm. After hearings, the trial court denied the petition and this appeal followed. The primary issue presented for our consideration is whether the trial court erred in finding that respondent did not \u201cconsent\u201d to his daughter\u2019s integration into petitioner\u2019s family within the meaning of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)(2)).\nSection 610 provides in relevant part as follows:\n\u201c(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 judgment, that a change has occurred in the circumstances 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 custodian appointed pursuant to the prior judgment unless:\n(1) the custodian agrees to the modification;\n(2) the child has been integrated into the family of the petitioner with consent of the custodian; or\n(3) the child\u2019s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.\u201d\nThe petition in this case alleged a change in circumstances had occurred, that modification was in the best interests of the child and that the child had become integrated into the family of the mother with the consent of the father. Although it made no findings as to changed circumstances of the child\u2019s best interests, the trial court found that Nicole had become integrated into her mother\u2019s family, but concluded it must deny the petition on the ground that the consent requirement of section 610(b) (2) had not been satisfied, observing there had been some evidence to support the father\u2019s claim that his relinquishment of custody was intended to be temporary, but also other evidence that it was to be permanent. The court concluded, however, that even if the father had consented to a permanent change in custody, he revoked that consent two years later by taking Nicole from her mother.\nPetitioner brings this appeal contending that the trial court\u2019s decision finding lack of consent is against the manifest weight of the evidence, and that consent under subsection (b)(2) cannot be revoked. We agree.\nThe Commissioner\u2019s Note to the uniform act, from which the new Illinois Act was drawn, suggests that finality of child custody judgments is an important consideration as any change in a child\u2019s environment may have adverse effects upon him. (Uniform Marriage and Divorce Act, 9A Uniform Laws Annotated 91, 212, Commissioner\u2019s Note (1979) (hereinafter ULA).) Subsection (b)(2) specifically contemplates modification where a child, formerly in the custody of one parent, has in fact been integrated into the family of the petitioning parent as the effect on the child may then be less disruptive.\nIn our view, the consent requirement in section 610(b)(2) is intended to ensure that the custodian acquiesced in the transfer of physical custody (e.g., to discourage noncustodial kidnapping) and the integration into the family of the petitioner, and should be viewed in that narrow context. (9A ULA 212.) The consent requirement is satisfied where as in this case the custodian had placed the child with the noncustodial parent and willingly permitted the child to become integrated in the new family.\nThe record does not support the father\u2019s contention that he intended the new custodial arrangement to be temporary and did not intend the child to become part of the mother\u2019s family. He testified that at the time he relinquished custody he told the mother he would \u201cremain in the background\u201d and \u201cnot interfere\u201d with the mother\u2019s custody. Additionally, while the father claims he relinquished custody solely because of the conflict between Nicole and his second wife, he made no attempt to reestablish custody after the second divorce, and instead initiated a new relationship with a third woman, visiting Nicole on only two or three occasions during that period. Respondent\u2019s testimony that he did not want his daughter to become integrated into petitioner\u2019s family is inconsistent with his conduct in leaving Nicole with her mother for almost two years. We find that the consent requirement of subsection (b)(2) was fully satisfied in this case.\nThe trial court also suggested that even if the father had originally consented to the child\u2019s integration into the mother\u2019s family, he later revoked that consent by taking physical custody in April of 1978. It would be inconsistent with the policies of stability and continuity underlying section 610, however, to allow revocation of such consent once the child has become settled into her new family with the acquiescence of the custodial parent.\nAs pointed out previously, the trial court made no findings on the questions of changed circumstances and whether the interests of the child would be best served by a change of custody. There is some indication in the record that the court might have arrived at a different conclusion had it not felt constrained by section 610(b) to decide the consent issue as it did. Accordingly, the order of the trial court denying the petition will be reversed and the cause remanded for further proceedings. In view of the policy of section 610 favoring stability in the child\u2019s environment, the trial judge should also take into consideration Nicole\u2019s residence with -her father since April of 1978, in determining whether a modification of custody now would best serve Nicole\u2019s interests.\nReversed and remanded.\nGUILD, P. J., and RECHENMACHER, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE NASH"
      }
    ],
    "attorneys": [
      "White & Roux, of Lake Bluff, and Thomas M. Gurewitz, of Waukegan, for appellant.",
      "Stephen G. Applehans and William G. Rosing, both of Rosing, Carlson & Magee, Ltd., of Waukegan, for appellee."
    ],
    "corrections": "",
    "head_matter": "In re CUSTODY OF NICOLE BURNETT. \u2014 (GABRIELE E. BURNETT, Petitioner-Appellant, v. JAMES W. BURNETT, Respondent-Appellee.)\nSecond District\nNo. 78-537\nOpinion filed August 21, 1979.\nWhite & Roux, of Lake Bluff, and Thomas M. Gurewitz, of Waukegan, for appellant.\nStephen G. Applehans and William G. Rosing, both of Rosing, Carlson & Magee, Ltd., of Waukegan, for appellee."
  },
  "file_name": "0998-01",
  "first_page_order": 1020,
  "last_page_order": 1023
}