Talbert v. Wallace

Mr. JUSTICE CREBS delivered the opinion of the court: Plaintiff brought an action in the Circuit Court of Madison County to obtain custody of Katherine and William Talbert, minor children of the parties. After hearing extensive evidence the trial court awarded custody of the minor children to the plaintiff and also found that the defendant was unfit to have custody. Defendant has taken this appeal. The record contains considerable testimony and there are many areas where the testimony is conflicting. Without restating the evidence in this opinion, we find that there is ample evidence of changed conditions since the 1968 divorce decree and we also find that the trial court’s determination that it is for the best interests of the children to award their custody to the father is not against the manifest weight of the evidence. We therefore affirm the award of custody. A more difficult question is presented by the finding that the mother is unfit. It is not necessary to make such a finding in order to have a valid change of custody. While, as here, it may be for the best interests of the children to be with their father, if for some reason the father is unavailable, we would conclude from this record that it would then be better for the children to be with the mother than to be placed in an institution. The record indicates that defendant may be more concerned with living the tend of life she desires rather than subordinating her desires for her childrens best interests. On the other hand, there is no evidence of cruelty or mis-treatment. Accordingly, we reverse the finding that defendant is unfit to have custody. Affirmed in part, reversed in part. EBERSPACHER and CARTER, JJ., concur.