joins, dissenting:
The majority states, “The chief issue in this case is whether a change of custody predicated upon the open and continuing cohabitation of the custodial parent with a member of the opposite sex is contrary to the manifest weight of the evidence in the absence of any tangible evidence of contemporaneous adverse effect upon the minor children.” (78 Ill. 2d at 345.) An examination of the opinion fails to reveal any other issue, and the effect of the decision is that the plaintiff’s cohabitation with Hammon per se was sufficient grounds for changing the custody order previously entered. This record shows clearly that the children were healthy, well adjusted, and well cared for, and it should be noted that both the circuit and appellate courts made no finding that plaintiff was an unfit mother. The majority, too, makes no such finding and based its decision on a nebulous concept of injury to the children’s “moral well-being and development.” (78 Ill. 2d at 347.) I question that any competent sociologist would attribute the increase of “live in” unmarried couples to parental example.
The fragility of its conclusion concerning “prevailing public policy” is demonstrated by the majority’s reliance on cases decided by this court in 1852 (Searls v. People, 13 Ill. 597) and 1902 (Lyman v. People, 198 Ill. 544), and an appellate court decision (People v. Potter (1943), 319 Ill. App. 409) which, rather than “prevailing public policy,” more clearly indicates the prejudice extant in that period against interracial sexual relations.
As the appellate court pointed out, the courts should not impose the personal preferences and standards of the judiciary in the decision of this case. Courts are uniquely equipped to decide legal issues and are well advised to leave to the theologians the question of the morality of the living arrangement into which the plaintiff had entered.
As a legal matter, simply stated, the majority has held that on the basis of her presumptive guilt of fornication, a Class B misdemeanor, plaintiff, although not declared to be an unfit mother, has forfeited the right to have the custody of her children. This finding flies in the face of the established rule that, in order to modify or amend an award of custody, the evidence must show that the parent to whom custody of the children was originally awarded is unfit to retain custody, or that a change of conditions makes a change of custody in their best interests. This record fails to show either. Mr. Justice Moran and I dissent and would affirm the decision of the appellate court.