dissenting:
The majority correctly holds that a parent seeking modification of a child custody judgment within two years is not required to prove serious child endangerment by clear and convincing evidence. Section 610(a) of the Marriage and Dissolution of Marriage Act merely requires the court to make a threshold determination that “there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health” (750 ILCS 5/610(a) (West 1996)) before proceeding to an evidentiary hearing. Then, at such hearing, the petitioner must prove by clear and convincing evidence that “a change has occurred in the circumstances of the child or his custodian” and “modification is necessary to serve the best interest of the child.” 750 ILCS 5/610(b) (West 1996). However, the majority’s decision to reverse the trial court’s order modifying custody ignores the appropriate standard of review in child custody cases and usurps the role of the fact finder. Therefore, I respectfully dissent.
The trial court’s memorandum of decision states, “Jesse does not have to prove that there is reason to believe that the present environment seriously endangers the children’s physical, mental, moral or emotional health. This is the initial burden that must be met by affidavit to even allow the petition to be heard. It was met. The burden on Jesse is to show by clear and convincing evidence that a change of circumstances has occurred and that a modification of custody is in the best interests of the children.”
The trial court found “the sexual abuse, which may permanently change the children’s lives, *** in and of itself constitutes a change of circumstances.” The trial court then made the following findings regarding “whether modification is in the best interests of the children”:
“There was little evidence of the character of Nancy Drone, the babysitter, at least until her unreliability became apparent at the conclusion of the babysitting relationship. Yet even if there was no reason to question Lindy’s judgment in hiring her, she was aware that Dustin had been sexually abused as a child. This might not alert some people to a potential problem, but when Dustin’s name was associated with french kissing the children, stronger measures should have been taken instead of merely telling Nancy Drone to watch Dustin. This, coupled with earlier, unexplained episodes of sexual behavior, convince the Court that Lindy did not take appropriate measures to protect the children from the sexual abuse that they suffered. Even after acquiring the knowledge of the french kissing, she continued to utilize Nancy Drone on at least a few occasions. ***
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The Court believes that due to Lindy’s failure to protect the children from sexual abuse, though probably negligent and not intentional, the stability now present in Jesse’s household with the presence of Karen Poteet, and to a lesser extent Lindy’s failure to properly immunize the children, it is in the children’s best interests that custody be transferred to Jesse.” (Emphasis added.)
Based on these findings, the trial court transferred the custody of the children to Jesse and granted Lindy liberal visitation.
The majority asserts the trial court’s memorandum of decision does not include the mandatory finding that modification of custody is “necessary” to serve the best interests of the children. 183 Ill. 2d at 558. To the contrary, the language in the trial court’s memorandum of decision demonstrates beyond question that the court applied the correct standard. Nothing in this court’s precedents indicates a trial court’s findings on a petition for modification of custody are insufficient if they do not include the magic word “necessary.” See In re Marriage of Cotton, 103 Ill. 2d 346, 356 (1984) (noting “[t]he guiding principle in child custody cases is the best interests of the child”). Moreover, this court has used the phrases “necessary to serve the best interests of the child” and “in the best interests of the child” synonymously. See, e.g., Cotton, 103 Ill. 2d at 359 (“There was sufficient evidence to justify the trial court’s view that Christy had been the victim of serious child abuse and that it was in the best interests of the child to modify the custody decree”).
The majority’s allusion to this purported defect in the trial court’s findings masks the majority’s true purpose in this case: to usurp the role of the trier of fact and replace the trial court’s judgment with its own findings on the issue of custody. The majority correctly notes that the determination of custody is a matter which rests within the sound discretion of the trial court and may not be reversed unless it is contrary to the manifest weight of the evidence. 183 Ill. 2d at 557-58, citing In re Custody of Sussenbach, 108 Ill. 2d 489, 498-99 (1985). To say that the majority only pays lip service to the proper standard of review in this case would be too generous. The majority recites the proper standard of review but then ignores it utterly in a flurry of appellate fact finding. Seizing on the trial court’s comment that this was a close case in which “ ‘reasonable people might disagree,’ ” the majority concludes the evidence presented by Jesse “ ‘established only that Lindy might have used poor judgment’ ” in assessing the danger of sexual abuse posed by her former baby-sitter’s teenage son. 183 Ill. 2d at 558. The last sentence in the majority’s analysis is particularly telling. “In sum,” the majority concludes, “Jesse did not establish by clear and convincing evidence that modification of custody was necessary to serve the best interests of the children.” 183 Ill. 2d at 560. The problem with the majority’s conclusion is the trial court did find that Jesse proved by clear and convincing evidence that modification was necessary. Thus, this court must defer to the trial court’s findings unless they are against the manifest weight of the evidence. See Sussenbach, 108 Ill. 2d at 499; In re Marriage of Fuesting, 228 Ill. App. 3d 339, 344 (1992) (noting trial court is in best position to determine custody issues because it has heard the testimony of the witnesses and observed their demeanor).
The trial court’s comment this was a close case “upon which reasonable people might disagree” was a candid admission concerning the difficulty in deciding child custody cases. About that, there can be no dispute. The majority, however, has chosen to ignore its function as a court of review and instead assumes the role of the trier of fact in order to make its own determination on the issue of custody. This decision undermines the deference traditionally accorded to trial courts on this issue, and, in effect, amounts to de novo review on matters of fact at the appellate level. This is a new and unfortunate precedent for the orderly administration of justice. Accordingly, I dissent.
JUSTICE NICKELS joins in this dissent.