dissenting:
I respectfully dissent. In this appeal the intervening petitioners (the grandparents) contend that the court erred in refusing to hear evidence as to the father’s nonsupport of the children and that the court abused its discretion in transferring custody from the mother to the father on the basis of the evidence presented.
I agree with my colleagues that this case should be decided pursuant to the new Illinois Marriage and Dissolution of Marriage Act. As pertinent here the Act provides:
“(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 prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(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 environment is outweighed by its advantages to him.” 111. Rev. Stat. 1977, ch. 40, par. 610(b)(1), (2), (3).
The trial court here determined that a modification of the custody order was in the best interests of the children.
The law requires that competing custody and support claims be resolved in accordance with the best interests of the child and places upon the court the burden of determining where that interest resides. DeYoung v. DeYoung (1978), 62 Ill. App. 3d 837, 379 N.E.2d 396.
It is obvious to me from the testimony of all parties that Nancy not only does not have any place for the children to stay and cannot support them, but she does not even want custody. On the other hand, as between the grandparents and the father, the father not only has the superior natural right, but in addition to that he has sought custody, whereas the grandparents do not, apparently, want actual legal custody. I would gather from the evidence that the grandparents recognize their daughter is not a responsible person, but that they would like the children to remain in their de facto custody. This would leave the children in an indefinite and unsatisfactory legal position — the responsibility for the children not being legally decided. Nor is it fair to the father to expect him to support the children in his former wife’s parents’ home when he is willing and able to support them in his own home.
The conditions since the decree of divorce have radically changed. At that time Nancy was given custody but she has since demonstrated neither a desire nor a capacity to take care of the children herself and she has moved some six times since the decree and admits she is unable to furnish a good home for the children.
In Doyle v. Doyle (1978), 62 Ill. App. 3d 786,791,379 N.E.2d 387, the court said:
“We do not agree that a specific finding with respect to subsection (b)(1) to (3) is required. Subsection (b) expressly requires that a finding should be made that a change in circumstances of the child or custodian has occurred and that a modification is necessary for the child’s best interests. The express requirement for these findings indicates that no requirement was intended for more detailed findings on points (1), (2) or (3) although such findings would be of aid to a court of review.”
The unstable environment of the mother and advanced age of the grandparents are, in my opinion, a sufficient basis for the trial court’s specific finding that the children’s best interest would be served by a change in custody.
I would affirm the judgment of the circuit court of Winnebago County.