dissenting:
I cannot agree with the conclusion of the majority that section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610) requires a reversal of the decision of the trial court in this cause; therefore, I respectfully dissent.
The majority concludes that section 610 of the Act prohibits the trial court in the case at bar from considering an application to modify its child custody order within two years after the entry of such order, holding that the court must “first find that petitioner met one of the jurisdictional requirements of subsections (1) through (3) [of section 610(b)]” and then apply the “ ‘best interests’ standard.” Section 610 of the Act provides in pertinent part that:
“(a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(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:
(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.
(c) 0 * #.”
The record in the case at bar indicates that the respondent’s motion to modify the custody judgment was based at least in part upon an affidavit submitted by respondent describing petitioner’s inability to care for the children and, additionally, petitioner’s agreement to the change because she was ill. On June 29,1979, the court entered an order which recited that custody of the children was being changed by agreement of the parties. Such order provided that the cause would be reviewed in six months to consider “the then best interests of the children and the circumstances of the parties.”
At the final custody hearing on May 7, 1980, the court entered an order in which it stated that section 610 of the Illinois Marriage and Dissolution of Marriage Act was not applicable to the proceedings and stated that “[t]he language of ‘best interests’ and the fact that the June 29 order spoke in terms of temporary custody led the Court to this conclusion.”
Although the trial court held that section 610 of the Act was not applicable, I am unable to conclude that the language of the court order, when read in its entirety, does not comport with the provisions of section 610 of the Act.
In section 610(a) of the Act it is provided that no motion to modify a custody judgment may be made earlier than two years after its date, unless the court permits such application to be made on the basis of affidavits indicating that the child’s present environment may endanger seriously its physical, mental, moral or emotional health. I can envision few circumstances more clearly indicating compliance with this subsection than the instant case, in which a motion to modify custody supported by an affidavit has been filed, indicating petitioner’s inability to care for the children and accompanied by petitioner’s consent to the arrangement because she was ill.
The temporary custody provision was reviewed after six months, and on May 7, 1980, the court entered the order which ultimately resulted in the instant appeal. In such order the court recited that it felt that “Petitioner did not act responsibly or in the children’s best interests when she left them with Respondent from May 25, 1979 until the order was entered on June 29,1979 changing custody.” Additionally, the court found it to be to the best interests of the children that their permanent custody be placed with respondent and stated: “The children have established themselves in Respondent’s home, and by all indications, are well adjusted and physically and mentally sound, although affected by the stress caused by lack of security in their living situation and their ultimate custody.”
Thus, the trial court found that petitioner did not act responsibly or in the children’s best interests and that the children had established themselves in respondent’s home. While the court did not frame its findings in the express statutory language of section 610(b) of the Act, to require it to do so would be to require form over substance. An examination of the record in the instant case establishes the following: (1) the initial change in custody was made by agreement of petitioner, which is sufficient cause to change custody under section 610(b)(1) of the Act; and (2) the court found that the children were “established” in respondent’s home, also being sufficient grounds to change custody under section 610(b) (2) of the Act.
Finally, it is noteworthy that the court in In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499, referred to the commissioners’ note to section 409 of the Uniform Marriage and Divorce Act, which is the equivalent of section 610 of the Illinois Marriage and Dissolution of Marriage Act. Our supreme court there quoted with approval that portion of such note which states:
“ ‘Subsection (b) in effect asserts a presumption that the present custodian is entitled to continue as the child’s custodian. * * * Any change in the child’s environment may have an adverse effect, even if the noncustodial parent would better serve the child’s interest. ° ° ”.’ 9A Uniform Laws Annotated sec. 409, Commissioners’ Note (1973).” (77 Ill. 2d 414, 420, 396 N.E.2d 499, 502.)
In the case at bar, respondent, not petitioner, was the custodian of the children. After her surrender of their custody to respondent, petitioner became the noncustodial parent. The portions of the order of the trial court quoted above indicate that court’s hesitancy to remove the children from the custody of respondent in whose home they were “established,” a consideration declared to be fundamental by the Uniform Act commissioners.
For the foregoing reasons, I would affirm the judgment of the trial court.