dissenting:
I respectfully dissent from the majority holding which reverses the trial court order granting custody of Douglas to his father, the petitioner. I would find that the evidence overwhelmingly supports the trial court decision, and thus we are prohibited from disturbing that order.
A custody determination lies within the sound discretion of the trial court, since it alone is in the best position to judge the witnesses’ credibility and determine the needs of the child. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 485 N.E.2d 367.) The reviewing court is prohibited from trying the case de novo, as the majority appears to be doing here. It must limit its role to determining whether the trial court’s transfer of custody constituted an abuse of discretion or is contrary to the manifest weight of the evidence. In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 485 N.E.2d 367.
The majority asserts that the trial court’s decision demonstrates a “primary reliance” on Douglas’ preference, as expressed to Dr. Bussell and to the court in chambers. The trial court, however, rested its decision on a much broader foundation than just Douglas’ preference. It considered all of the statutory factors under section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 602).
After the trial, the court specifically cited examples of testimony, explaining that it wanted to reassure the parties that it had heard all of the evidence. The evidence considered included testimony from teachers, neighbors, family friends and various experts. The evidence also included report cards, family photographs, psychological test results, expert reports and Douglas’ drawings. The evidence addressed issues of school performance, after-school activities, hours of watching television, movies attended, religion classes, Cub Scouts, outside interests, sports and recreational activities, enjoyment of computer games, musical interests, friendships, vacations, parent-teacher conferences, Christmas celebrations, and doctor visits.
In the face of the trial court’s diligent and close attention to such detailed, exhaustive evidence, it is erroneous to conclude that the court’s decision was predicated primarily on Douglas’ preference.
Moreover, the majority fails to recognize that the court’s heavy reliance on Dr. Bussell’s recommendation went far beyond Dr. Bus-sell’s single statement that Douglas preferred to live with his father. The court expressly stated it was impressed by the depth of Dr. Bussell’s interviews and the persuasiveness of his overall testimony.
Dr. Bussell submitted an 11-page, single-spaced report to the court. He conducted 16 interviews of the parties, Yandura, the three Edsey children, and the paternal grandmother. He addressed a vast array of issues related to Douglas’ welfare, and went far beyond the mere preference indicated by Douglas. The trial court properly relied on the fact that Dr. Bussell based his recommendation on many factors, and that Dr. Bussell did not look at each family member or individual factor in a vacuum.
For example, Dr. Bussell, a child psychiatrist for 25 years, concentrated on Douglas’ emotional problems within the context of the family’s interactions, and in a much more extensive and in-depth manner than did the Psychiatric Institute’s social worker in her single interview with Douglas. Dr. Bussell found psychopathology in Douglas:
“He is confused by the custody battle. He is demonstrating confusion in terms of his loyalty to his mother versus his father and his brothers. He has some definite separation anxiety and he does not really at this time feel secure in his setting.”
Douglas needed more stability. Dr. Bussell described Douglas as needing “ongoing therapy irrespective as to which parent has custody. I do feel, however, that at this time his emotional stability will be increased if custody is awarded to father.” He quoted the results of psychological testing done on Douglas: “He comes across as a sensitive, perceptive youngster but one who exhibits exaggerated fears and anxieties relative to separation. These fears and anxieties are expressed in a relatively active fantasy life, one replete with themes of loss and separation, and death.” Douglas appeared depressed in all four of the sessions with Dr. Bussell. The psychological testing “essentially confirmed” Dr. Bussell’s impression of depression.
Dr. Bussell was asked for an opinion as to the impact on Douglas if he were forced to live separate from his brothers.
“I think it would be detrimental to his mental health. Possibly even more so now that the litigation has been effected because before he may have been less than happy with his setting, but now he is optimistic that it will be changed. He is confident that the court will do the right thing. So it would be a significant disappointment. I’m not saying he would not get over it at some time, but it would certainly be a significant psychological blow to him at this time.”
Dr. Bussell, testifying in rebuttal for petitioner, reaffirmed his opinion that Douglas suffered from depression directly as a reaction to the situation of his immediate environment. He disagreed with any opinion to the contrary offered by the Psychiatric Institute. Moreover, if Douglas stayed with his mother, the depression would probably get worse. In addition to the heightened depression, he would expect to see an element of bitterness added to the child’s personality.
The court could also rely on the fact that Dr. Bussell met with the family members many more times than any other expert. Psychiatric Institute team members never saw a family member more than once. Dr. Bussell saw the father five times, the mother three times, Douglas four times, David, Steve and Yandura each once, and the paternal grandmother once. The trial court was also entitled to rely on the fact that Dr. Bussell carefully examined the relationship of the siblings to each other, and the relationship of the siblings to their parents. The Psychiatric Institute virtually ignored this factor.
Dr. Bussell noted, for example, that petitioner, one of eight children, had a “very, very close” family which “still maintains significant interaction.” He went on to reason that “[t]his may have somewhat rubbed off on Douglas and may well explain his extremely close relationship and feelings for his two older brothers.” Dr. Bussell found that in “some ways it seems that Douglas feels more stability in his relationship with his brothers than with either parent.”
While there was some negative reference made by the Psychiatric Institute to the age difference between Douglas and his brothers, Dr. Bussell noted that “[c]uriously enough, the [age] spread between Lynne and her next older brother is almost identical to the spread between Doug and David.” Respondent testified that she was close to her brothers.
In fact, Dr. Bussell suggested that the age difference permitted an even closer bonding and provided important stability for Douglas which his parents individually had not been able to provide. He explained that Douglas has a “very close filial relationship with his brothers. He has seen his parents separate, and not infrequently, and there is a significant age difference here between him and his next older brother, and not infrequently a child will establish a stronger bond with his siblings.” Douglas had “very definitely” done that. The siblings’ bond was “more than average. It is a combination of what I think is going on in his life, what has gone on in the recent past, and also he has observed his father’s family which is very, very close.”
Again avoiding isolating any single factor, Dr. Bussell took an expanded view of the impaired relationship between respondent and the two older boys, and the effect that would continue to have on Douglas were he to live with his mother. He explained, “This relationship has to be considered in the recommendation due to the fact that one must consider [the two older boys’] potential influence on Doug in view of the fact that both feel somewhat rejected and hurt by [their] mother, to their perception, only really wanting Doug with her.” Dr. Bussell testified, “The fact that he was not with his brothers and that he did not feel that she wanted them with her, that would affect the relationship.”
Thus, Dr. Bussell offered his opinion, based on the extensive interviews, psychological testing, and all documentary materials reviewed, including reports from Zimmerman and the Psychiatric Institute, that within a reasonable degree of psychiatric certainty, it would be psychiatrically in Douglas' best interest to live with his father.
“In my opinion after the evaluation I feel his best interest would be served by a transfer of physical custody from mother to father. With very extensive and liberal visitation for mother. *** I think it would afford him a better feeling of stability in a setting, he has a great deal of affection for both of his parents, and they are both essentially healthy people, and that is why this case is so very, very difficult. I feel that his stability will be heightened living with his brothers and his father. I think he will overcome a significant amount of depression.”
For the majority to conclude that the trial court was not entitled to place considerable reliance on this expert’s recommendation simply ignores the depth, the thoroughness, and the solid foundation upon which the recommendation rests. It is for the trier of fact, not this court, to resolve conflicts between expert opinions in custody cases. The majority has no basis for characterizing the trial court’s reliance on Dr. Bussell as granting “undue importance” to that opinion.
The majority is wrong, therefore, in suggesting that the trial court “ascribed controlling weight” to Douglas’ preference. However, while the record reveals no indication that the preference received such weight, the court certainly was entitled to consider the numerous, credible ways in which Douglas expressed that preference. The likelihood of Douglas’ preference being accurately given was revealed by Dr. Bussell’s extensive use of various objective means to explore the issue. He did not merely ask Douglas whose home he preferred.
Dr. Bussell first offered four possible alternate solutions, and asked Douglas to grade them by his preference. Douglas chose this order: (1) He would live in Park Ridge with his father and brothers; (2) his mother would move back to Park Ridge and split time with his father; (3) his father would move to Lake Bluff and split the time; and (4) his brothers would move in with his mother.
Next, Dr. Bussell asked Douglas to draw a picture of his “family,” which tends to demonstrate the child’s perception of “his relationship within the family.” Douglas drew Steve first mowing the lawn, his father second golfing, Dave third riding his bike, and himself fourth watching television at his father’s home. At trial, Dr. Bussell noted that not including the mother or her new husband was significant, “and what made it even slightly more significant in this particular instance is that the day that he did the drawing at my request was the day that [his] mother brought him in to the interview so she was sitting and waiting.”
Douglas also told Dr. Bussell he would prefer to attend the Park Ridge school, which is near his father’s home.
In addition, Douglas told Dr. Bussell to “tell the court that I want to live with my dad.”
Furthermore Dr. Bussell offered Douglas two slips of paper, one which said “mom” and the other which said “dad.” He asked Douglas to pass Dr. Bussell the note which stated which parent he wanted to live with, and Douglas passed him “dad.” Dr. Bussell responded, “Oh! I see mom!” Douglas immediately corrected him, pointing out that it said “dad.” Dr. Bussell then asked if his left hand felt differently than his right hand, but Douglas again passed the note which read “dad.”
At trial, Dr. Bussell testified that he saw Douglas a fourth time, after he had submitted his written report.
“[H]e was not aware as far as I could discern that I had submitted a report, and I had told him on that occasion that I had suggested that he live with his dad but it was not too late and I could send in an addendum to the report if there was anything he would like me to do. He said he did not want me to change the report and just wanted me to get to the judge soon.”
Dr. Bussell also noted that Douglas often left his school clothes at his father’s home, which, together with the family drawing, and the paper slip game, “would appear to indicate that his unconscious preference is to be with his father and brothers.”
For the majority to brush aside this strong, corroborated evidence by saying “Douglas never verbally expressed a preference for living” with his father is another improper and persistent attempt to supplant the role of the trier of fact. 199 Ill. App. 3d at 55.
In addition, the majority asserts that Douglas’ preference was the result of pressure from his brothers and father. I note that Dr. Bussell “checked” the preference with many different methods, exploring any unconscious desires or coaching. The majority offers weak reasoning when it states that Dr. Bussell “acknowledged that he could not be certain that Douglas’ responses had not been influenced by his brothers or by petitioner.” (199 Ill. App. 3d at 55.) Obviously, no one — even the parents — can guarantee the absence of any undue influence or coaching. However, Dr. Bussell testified, “To a reasonable degree of medical certainty, I would say he [the father] did not” influence Douglas regarding his preference.
Moreover, the court could rely on its own in camera interviews with the three boys, in which they corroborated each other in expressing Douglas’ wishes, and the older boys’ wishes, that he live with their father.
The majority focuses on the assertion that Douglas’ preference to live with his father was “not related to his best welfare, but [was] motivated solely by his desire to be with his brothers.” (199 Ill. App. 3d at 55.) It also states that Douglas’ “main focus was not that he missed the petitioner, but that he missed his brothers.” (199 Ill. App. 3d at 55.) I am unaware of any principle which prohibits, particularly in view of the equality of the parties’ parenting capabilities, the consideration of the child’s needs within the context of a significant, strongly bonded sibling group.
I believe that the majority becomes a trier of fact when it asserts that “some of the evidence which could have impacted upon the court’s analysis of the statutory factors was apparently overlooked or greatly discounted.” (Emphasis added.) (199 Ill. App. 3d at 55.) In so doing the majority supplies its own expert opinion and explanation for the child’s behavior.
It first lists the nightmare problem which occurred “with much greater frequency at petitioner’s home.” (199 Ill. App. 3d at 56.) Each parent cited a few nightmares. No expert paid considerable attention to them, and they are not an area of expertise for our court. Then the majority refers to the bedwetting problem. It implies that the bedwetting indicates that Douglas experienced more stress in his father’s home. This is also outside our field of expertise. It is for the trier of fact to consider the witnesses’ testimony regarding bedwetting.
The majority also lists the fact that Douglas had become “integrated” into his mother’s home, had friends, and went to CCD classes and cub scouts. There was equal evidence of Douglas’ integration into his life in Park Ridge, where he had lived since he was born. The trial court was not required to find the Lake Bluff integration any more significant than in Park Ridge.
The remaining evidence which “could have impacted upon the court’s analysis,” which the majority believes was “apparently overlooked or discounted,” is such that the court was entitled to disregard it. 199 Ill. App. 3d at 55.
For example, the Psychiatric Institute team recommended that Douglas live with his mother. The trial court was justified in its express finding, however, that the Psychiatric Institute report suffered, in comparison to Dr. Bussell’s report, in “two significant ways.” First, the Institute focused almost exclusively on the “pathology of the parents *** versus the best interest of the child, which is what I am required to determine.” Second, Dr. Wein’s “failure to talk to Doug herself in light of the interview that she was presented with by her associates made it very difficult for me to adopt her conclusions.”
Karen Smith, a psychologist who worked on the Psychiatric Institute team, recommended that Douglas live with his mother. However, she never saw Douglas. She spent about an hour with each parent and decided the father had “personality problems.” She admitted, however, that she did not have the “time or space” to write down many of the father’s statements, and that an in-depth evaluation requires more time and tests. In addition, she based her perceptions about the father on the mother’s descriptions of the father. Incredibly, she explained, “I had no reason to doubt her.”
Notably, on rebuttal Dr. Bussell disagreed with Smith. He offered a strong opinion that based on his five interviews, his experience, and the psychological evaluation performed by a psychologist he had worked with for 20 years, he did not believe the father had a narcissistic personality or other personality problems.
Dr. Margaret Wein, a psychiatrist and member of the Psychiatric Institute team, testified as an expert for respondent and recommended that Douglas live with his mother. Dr. Wein spent 45 to 60 minutes interviewing the mother and the father, and admitted that the time was inadequate to get full and complete personality profile information. When Douglas was asked his living preference, Wein believed his answer to be ambivalent. The only information Dr. Wein could offer to help the court was that Douglas was in conflict, wanting both parents, but he especially missed his brothers. She also offered the less than helpful opinion that Douglas would be unhappy in either situation. Generally, Dr. Wein would leave siblings together. Here, she would ignore the general rule simply because the two older boys preferred to be with their father.
In view of these weaknesses in the other “discounted” evidence, the trier of fact could reasonably choose not to rely on the expert opinion of the Psychiatric Institute, and instead choose to rely on the expert opinion of Dr. Bussell.
Nor was the trial court required to rely on the testimony of Naomi Zimmerman, a social worker who also testified for respondent that Douglas should live with respondent. Zimmerman had seen some of the family in 25 counseling sessions over a two-year period. Most significantly, however, she never saw petitioner, or the two older brothers. Zimmerman found this fact unimportant. Quite simply, Zimmerman believed a child’s place is with the mother. Interestingly, Zimmerman stated that “a mother of a child of five should be utilized if she’s available and well and sound of mind, for a five year old. I might make a different opinion if he were 10 or 12.” In fact, Douglas is now 10 years old.
I must also comment on the idea which was expressed several times, that the mother was somehow better suited for custody because Douglas could thereby avoid having a babysitter (his grandmother or next door neighbor) for a few hours after school. A trier of fact could reasonably conclude that this opinion carries little weight for several reasons. Most notably, the judgment for dissolution of marriage stated: “The parties acknowledge that it is likely that both may be employed and therefore each party agrees to obtain proper care for the minor children while the minor children are in their physical custody and they are at work.” Moreover, the December 20, 1988, order instructs the mother to find full-time employment and assist in supporting the three children.
The trial court might also have considered other indications that Douglas’ best interest would not be served were he to live with his mother. For example, the mother admitted that she agreed to let all three boys live with the father, as evidenced by a letter she wrote on April 23, 1986, and subsequently surprised everyone by abruptly changing her mind. In addition, the mother unilaterally changed the joint custody agreement, an action which is never favored by the courts. Moreover, by all accounts, her relationship with the two older boys was quite conflictual.
For these reasons, I would affirm the trial court order finding that it would be in Douglas’ best interests to change physical custody from a 50-50 split between the parents to the father, because that decision is not against the manifest weight of the evidence.
I agree with the majority’s finding that the trial court erred in denying respondent’s petition for fees.