concurring in part and dissenting in part:
I agree with the majority that reversal is proper, but assert that the cause should not be remanded. The majority was correct in determining that the trial court erred in changing custody from the mother to the father. It is clear from the record that the father did not sustain his burden to show that it was in the best interests of the child to change custody to the father.
However, I decline to rely on Krabel v. Krabel (1981), 102 Ill. App. 3d 251, as the majority does, to stand for the proposition that Supreme Court Rule 366(a)(5) gives the appellate court the power to remand child custody cases for further evidentiary hearings on the basis of the trial court’s error and the need to determine the best interests of the child. In Krabel, at issue was the custody of two minor children in a marriage dissolution case. Upon dissolution, custody of the children was awarded to the mother. Three years after the dissolution, the father petitioned for a change in custody on the basis of the mother’s cohabitation with her paramour. The trial court denied the petition, and upon appeal, the appellate court vacated the trial court’s order and remanded for an evidentiary hearing to determine whether the mother had changed her living situation or had gotten married in the time ensuing since the petition was denied. Krabel, 102 Ill. App. 3d at 253-54.
Krabel may be distinguished from the present case because in that case no change of custody occurred due to the trial court’s decision, so the burden and the presumption which existed at the time of trial in Krabel were the same as the burden and presumption in place at the time of the hearing on remand. In contrast, in the present case, while the burden will remain the same, at trial the mother had the presumption in favor of maintaining her custody of the girl. However, upon remand she will be deprived of her presumption since the majority has determined that neither party will have the benefit of that presumption. For this reason, the father unfairly benefits from the majority’s decision by having the mother stripped of her presumption.
Furthermore, the majority’s ruling gives another advantage to the father: because of the majority’s decision, the father will essentially receive another bite of the apple in that he now will be permitted to put on another case to demonstrate that it is in the best interests of the child to award custody to the father. The majority points out (260 Ill. App. 3d at 220) that it was the father’s job to show that home schooling was not in the child’s best interests. I assert that he did not do that and should not be given a second chance to show that.
Thus, for these two reasons the father is unfairly advantaged and the mother disadvantaged by the majority’s decision. Such a decision by the majority renders the trial court’s decision meaningless, as it effectively mandates a new trial. For the same reason, it also abrogates judicial efficiency. I do not believe that Supreme Court Rule 366(a)(5) was meant to be expanded in this manner. Although the majority is correct in attempting to consider the best interests of the child, I believe that the majority improperly focuses on that purpose while ignoring the unfair advantages arising under this disposition which are not usually imparted during the appellate process.
For the foregoing reasons, I respectfully dissent.