specially concurring:
I agree that the record in this case does not support a finding that the father adequately proved that the best interest of the child required a change of custody. Further, I agree with Justice Inglis that the proper procedure here is to remand to the trial court for it to hold a hearing on the current best interest of the child. Unlike Justice Bowman, I find that we clearly have authority under Krabel v. Krabel (1981), 102 Ill. App. 3d 251, and Supreme Court Rule 366(a)(5) (157 Ill. 2d R. 366(a)(5)) to order the remand. Moreover, my purpose in specially concurring is to emphasize what I consider to be the important aspect of the remand, which is the nature of the hearing required.
As Justice Inglis’ majority decision notes, the circumstances of the child weigh against a simple reversal of the trial court’s decision to change custody. Clearly, from the appellant’s perspective, the most favorable result would be an outright reversal, revesting custody in her without further proceedings. However, despite the fact that we find that the court lacked support for its order, we must not ignore the impact on the child which could flow from that decision.
Here, by virtue of the trial court’s change order, the child was removed, albeit inappropriately, from the mother’s household and placed in the father’s custody. This change resulted in significant geographical dislocation of the child. Furthermore, the parents’ differences in schooling philosophy have resulted in the child being placed in a new school environment since the entry of the trial court order. As the majority decision notes, since the court changed her custody, the child has lived with the father for 18 months — long enough possibly to have adjusted to the many differences in her new surroundings.
Because of the strains that changes in custody place on a child, and because we must give preeminence to the best interest of a child in custody cases (see Carroll v. Carroll (1978), 64 Ill. App. 3d 925), a concept which Justice Bowman’s dissent generally acknowledges, I agree with Justice Inglis that it would be ill-advised for us merely to order the child automatically uprooted and returned to the mother without regard to the events following the court’s change order. While a reversal and a return to the status quo ante may do justice in most cases, a determination of the best interest of the child requires that the court take into consideration what impact the experiences of the intervening time between the entry of the lower court order and the mandate of this court have had upon the child.
Under these circumstances, remand for a full hearing without a presumption favoring custody in either the father or the mother is the only proper disposition in this court. Unlike Justice Bowman, who would distinguish Krabel because in that case the appellate court was reviewing a trial court decision not to change custody, I do not find that this result disfavors the mother. Rather, I find it is the only way to ensure that the court determines the best interest of the child at the present time. By ordering the new hearing with the restrictions as to presumptions, we recognize that the relocation of the child was not the result of improper conduct by either parent, but rather resulted from an error of the court.
I do not find that our remand order in any way conflicts with our mandate under the supreme court rules. Further, if the result of the order is some measure of judicial inefficiency, ensuring that the best interest of the child is protected renders any inefficiency insignificant.
I strongly believe that the only method that can yield a proper result and protect the minor child following the court’s erroneous change of custody in this case is a remand for a hearing that takes into account the events since the court’s change order. On remand, the court must consider the child’s best interest, and although the mother will not automatically regain custody, her position will be supported by our findings here that the father’s showing in the original proceedings did not demonstrate that the best interest of the child favored a change of custody to him. After a full hearing the trial court will be in a position to enter an order providing for the best interest of the child in the real world and not as may have appeared two years ago.