dissenting:
I dissent only from that part of the opinion finding that the trial court’s custody determination was contrary to the manifest weight of the evidence.
On appeal from a case such as this one, where the trial court has had the opportunity to hear firsthand the witnesses’ testimony, we can only reverse the trial court if we conclude that the order is manifestly erroneous or results in a manifest injustice. In re Marriage of Willis, 234 Ill. App. 3d 156, 161-62, 599 N.E.2d 179, 183 (1992). A trial court’s custody determination must be given great deference because the trial judge has had the superior opportunity to observe the witnesses as they testified and is therefore in a far superior position to determine the best interests of the child. In re Marriage of Quindry, 223 Ill. App. 3d 735, 737, 585 N.E.2d 1312, 1314 (1992).
In this case, the majority concluded that the trial court’s order was contrary to the manifest weight of the evidence and that the order was manifestly unjust.
Many witnesses were called to testify, including both parents. The court regarded the case as difficult, commenting that the case “is sad *** because both parents are very loving and concerned parents.” From the perspective that either choice would be a proper one, the guardian ad litem, after what appears from the record to have been an exhaustive interview and reporting process, was not able to recommend to the court one parent over the other parent.
In a case presenting such a difficult choice between two very viable options, the appellate court should defer to the trial court’s discretion on the matter. After all, on appeal, we do not get to see the witnesses testify and judge their credibility. Especially in a close case, the reviewing court should greatly defer to the trial court’s judgment. There is a strong and compelling presumption that the trial court’s custody determination was correct. In re Marriage of Willis, 234 Ill. App. 3d at 161, 599 N.E.2d at 183.
As cited in the majority opinion, the relevant portion of the court’s order reads as follows:
“This Court finds that since [A.S.] has primarily resided with his father since June of 2006, and that he is only four years of age, it’s clear that his father’s home has been his primary physical residence and that [A.S.] is very comfortable in that situation. Under these circumstances, this Court is naming [the father] as the primary physical custodian.”
The majority correctly indicates that the order appears to be based only upon the child’s most immediate residency and his relative happiness while in this setting. There was no evidence that A.S. was unhappy when he lived with his mother in the Chicago area. The majority finds that this reliance solely upon A.S.’s most recent and current residency to form the basis for permanent custody being awarded to the father is erroneous. The majority finds support for its opinion in the “agreement” between the parties that A.S.’s residency in Albers, Illinois, was to be temporary in duration. The court states that the father violated this “agreement” and, thus, should not be rewarded for his wrongdoing.
Because the majority places such heavy emphasis upon this agreement, I turn to this issue. There appears to be little dispute about the understanding between the parties that A.S. would only temporarily reside in Albers, Illinois. What is in dispute, however, is the characterization of the father’s change of heart. The mother argues — and, essentially, the majority agrees — that the father’s change in focus was deceptive in nature. I find that evidence of deception is lacking. The only specific aspect of this alleged deception found by the majority occurred when the father “misled the circuit court” at the venue-motion hearing. The offensive claim appears to be found in the father’s petition for temporary and permanent injunction filed in response to the mother’s motion for a change of venue. This document was verified by the father and stated that the mother failed to return A.S. to the father’s care as agreed upon at the conclusion of her summer visitation period and that she had “absconded with the parties’ child.” I agree that this characterization of the facts is unduly harsh and overdramatized the truth of the matter. There was no custody agreement in place when the mother was alleged to have hidden A.S. away from his father. Additionally, the mother had just been served with papers stating that the father was seeking permanent custody of her child during the period of her summer visitation. By focusing upon this statement and inferring that the father denied the existence of a temporary custody arrangement, the majority misses the point. In finding that the trial court’s order was contrary to the manifest weight of the evidence, the majority states, “The overall circumstances — in particular, petitioner’s violation of the parties’ one-year agreement— support an award of primary physical custody to respondent.” 394 Ill. App. 3d at 214.
There was no binding temporary custody agreement. As a matter of convenience and practicality, A.S.’s parents agreed to the change in residential location for their child. This was a valid option, allowing the mother to complete her college education. However, the agreement was informal and was not a binding agreement. The majority seems to believe that the father’s suggestion that A.S. move to Clinton County and then his later statement that he would like to make the situation a permanent one were calculated and deceptive. This presumption completely discounts the probability that the father, emotionally, grew more attached to the child during the year they lived together and he could not bear the thought of returning A.S. to his mother’s permanent care in Chicago — a fact that is borne out by the father’s statement to the mother in January 2007 that he would like to make the custody arrangement permanent. Having such a change of heart does not have to be grounded in deception. I simply do not agree with the majority’s position that the voluntary informal agreement was “violated” under these circumstances. Because the case was factually so close, it is quite difficult to argue that the trial court’s ruling is contrary to the manifest weight of the evidence. However, by branding the father’s behavior as deceptive, the majority strengthens its contention of manifest error and/or manifest injustice.
I respectfully dissent from the majority’s determination that the custody order must be reversed.