A mother recently lost temporary residential custody of her young son to the father, when the court found that she could not facilitate a relationship between her son and the father.
In re MARRIAGE OF CARMALITA YOUNG and BURTRANN YOUNG is a recent case that was just decided by the Appellate Court.
The, Petitioner, Carmalita Young and Respondent, Burtrann Young, both sought custody of their
son, Zachariah, who was seven years old when the parties separated. The trial court awarded
joint custody to both parents, and ordered Burtrann, the father, to have residential custody and the mother was awarded visitation. Carmalita appealed the custody decision and the Appellate Court affirmed the trial court.
Carmalita enrolled their son in school, daycare, and basketball without discussing them with
Burtrann. She took Burtrann off the daycare list and he was not allowed to call their son at daycare,
visit him there, or pick him up early from there for visitation. Carmalita would not send their son’s
homework with him to his father’s house. She allows Burtrann to call the boy between 7 and 7:30
p.m. but ended their Skype sessions because she believed it was an invasion of her privacy.
Carmalita recognized Burtrann’s parenting strengths but believed that she could offer their son a more rounded upbringing and provide a more stable environment than his father could. In her
view, Burtrann failed to establish proper boundaries and tried to be her son’s friend more than a
parent. She acknowledged her son was familiar with his dad’s townhouse. Although she initially
asked for sole custody, she believed joint custody would be a better option.
The trial court announced its findings in February 2015, awarding Carmalita and
Burtrann joint custody of their son, with residential custody to Burtrann and visitation for Carmalita.
The trial court acknowledged Carmalita’s parenting capabilities but considered that she
systematically attempted to exclude Burtrann from their son’s life. The trial court pointed to
instances where Carmalita called the police, her failure to name Burtrann as a parent at their son’s
daycare, enrolling their son in extracurricular activities that took place during her son’s visits with his
father without consulting Burtrann as examples of Carmalita excluding Burtrann. Noting the
importance of the involvement of both parents, the trial court determined the only way to achieve
that involvement was to order joint custody with Burtrann as the physical custodian.
On appeal, the issue is whether the trial court erred when it awarded residential custody
to Burtrann. Carmalita argues that the trial court failed to consider her son’s need for continuity
and stability and placed too much emphasis on her son’s preference to live with his father when it
ordered that Burtrann be the residential parent.
The trial court decides custody according to the best interest of the child. 750 ILCS
5/602(a) (West 2012); In re Marriage of Smith, 2013 IL App (5th) 130349. In making a
custody determination, the trial court considers a number of factors, including: (1) the parent’s or
parents’ wishes regarding custody; (2) the child’s wishes; (3) the child’s interaction and
interrelationship with his parents; (4) the adjustment of the child to his home, school and
community; (5) the mental and physical health of all involved individuals; (6) physical violence
or the threat of it by the potential custodian, directed at the child or another person; (7) ongoing
or repeated abuse toward the child or another person; and (8) each parent’s ability and
willingness to foster the child’s relationship with the other parent. 750 ILCS 5/602(a)(1)-(8)
(West 2012); In re Marriage of Lonvick, 2013 IL App (2d) 120865.
The trial court is in the best position to judge witness credibility and determine the child’s best interests. Lonvick, 2013 IL App (2d) 120865, (quoting In re Marriage of Ricketts, 329 Ill. App. 3d 173, 177 (2002)). We will not disturb a trial court’s custody determination unless it is against the manifest weight
of the evidence. In re Marriage of Apperson, 215 Ill. App. 3d 378, 383 (1991).
The Appellate court said that the best interest factors support the trial court’s award of residential custody to Burtrann.
Both parents wanted custody of their son, so this factor favors neither Carmalita nor Burtrann. The boys’ parents love him and each would provide a stable and safe environment for their son. As to the second factor, their son expressed his preference to live with his father. He enjoys his own room
there with a big bed. He is close to the park and his friends. The third factor is the child’s
interaction and interrelationship with his parents.
Their son interacts well with his parents and enjoys a close bond with both of them. His relationship with his father is more aligned with the child’s needs and wishes. Carmalita’s lack of flexibility affects her relationship with her son, in that she fails to recognize his desire for physical activity and the importance of Burtrann in her son’s life.
The sixth favors Burtrann. The fourth factor also favors Burtrann. The child adjusted to his move
to Bourbonnais and the GAL expressed no concerns regarding his transfer to a school near his
father’s house. The child has friends and activities at both his father’s and his mother’s houses. As a
result of his mother moving them in with her parents, the child must adjust his activity level to
comply with the desires of his grandparents. In addition, both the boy and the GAL expressed
concern about the living situation where he shared a room and a bed with Carmalita. Despite
Carmalita’s attempt to introduce evidence of domestic violence on the part of Burtrann, the trial
court specifically found that factor to be inapplicable and struck Carmalita’s offer of proof of
physical abuse. There are no mental or physical health issues with either parent.
The final relevant factor is the ability and willingness of each parent to foster the child’s
relationship with the other parent. Contrary to Carmalita’s claims, the trial court did not consider
the child’s preference to be the determinative factor. Rather, the trial court emphasized Carmalita’s
“systemic effort to exclude Burtrann” as a key consideration in awarding custody to Burtrann,
reasoning it was the only way to ensure the active involvement of both parents. See In re
Marriage of Spent, 342 Ill. App. 3d 643, 652-53 (2003) (mother’s conduct in denying child’s
visitation and phone contact with father and in disparaging father in front of child supported
award of residential custody to father, where evidence demonstrated mother failed to foster a
close relationship between child and his father); In re A.S., 394 Ill. App. 3d 204, 214 (2009)
(father’s disrespect to child’s mother, unilateral change of the parties’ custody agreement, and
attempt to obtain sole custody of child supported trial court’s award of residential custody to
mother, who would better facilitate relationship between child and his father); In re Marriage of
Debra N., 2013 IL App (1st) 122145, ¶ 56 (mother’s attempts to thwart father’s relationship with
the child proper factor in custody transfer).
Like the parents in Spent, A.S., and Debra N., Carmalita was incapable or unwilling to
foster a relationship between their son and his father and took active steps to limit Burtrann’s
involvement in the child’s life. Examples of Carmalita’s exclusive conduct included making
decisions about the child without Burtrann’s knowledge or input, refusing to list Burtrann as the child’s
parent at daycare, and maintaining an inflexible schedule and attitude. The GAL opined that
Carmalita’s inability to be flexible impacted her son’s connection with his father. The trial court
likewise expressed concern that Carmalita would continue to engage in conduct contrary to
the child’s best interest in having Burtrann actively involved in his life. This factor, and the majority
of the best interest factors, favor Burtrann as the custodial parent.
The Appellate court did find that the trial court’s determination to award residential custody to Burtrann be an abuse of discretion.
We handle many custody cases a year, and we are noticing a trend at the trial level which is to award custody of the parties’ children to the parent who is capable of facilitating a relationship between the child and the non-custodial parent.