filed:  January 24, 2002

NO. 4-01-0583

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On June 12, 2000, the trial court entered a judgmentdissolving the marriage between petitioner, Stephen A. Craig, andrespondent, Stephanie J. Craig, and on March 19, 2001, a judgmenton the remaining issues of dissolution of marriage, grantingcustody of Roman Andrew Lynn Craig, born August 23, 1995, toStephanie and awarding the marital residence to Stephanie. Stephen appeals, arguing that the trial court erred in (1)granting custody of Roman to Stephanie and (2) awarding themarital residence to Stephanie. We affirm.

The record reflects that the trial court heard testimony over the course of four days, November 8, 2000, November 9,2000, February 8, 2001, and February 9, 2001, and from over 25witnesses. Stephen and Stephanie met in August 1992 and beganliving together in December 1992. Their son, Roman, was born onAugust 23, 1995. The parties married in July 1997 and separatedin March 2000. The trial court entered a judgment dissolving themarriage between Stephen and Stephanie on June 12, 2000.

Stephen is 32 years old and employed by the Departmentof Corrections, Danville, Illinois, and also as a naval reservist. Stephanie is 26 years old and operates a day care center,licensed by the Department of Children and Family Services, inthe marital home. Although both parties have participated inRoman's care, Stephanie has served as the primary caregiver ofRoman since his birth.

Various witnesses testified as to incidents of inappropriate conduct exhibited by Stephanie. The parties are wellaware of the evidence presented and it need not be set forth indetail.

On March 19, 2001, the trial court entered a judgmenton remaining issues of dissolution of marriage, granting custodyof Roman to Stephanie and awarding the marital residence toStephanie. This appeal followed.

Stephen argues that the trial court erred in grantingcustody of Roman to Stephanie. The determination of childcustody rests largely within the broad discretion of the trialcourt and its decision at trial will not be disturbed on appealunless it is against the manifest weight of the evidence orunless the trial court abused its discretion. In re Marriage ofApperson, 215 Ill. App. 3d 378, 383, 574 N.E.2d 1257, 1260-61(1991). Great deference must be accorded to that decision sincethe trial court is in a superior position to judge the credibility of witnesses and determine the needs of the child. Apperson,215 Ill. App. 3d at 383, 574 N.E.2d at 1261.

Section 602 of the Illinois Marriage and Dissolution ofMarriage Act (Dissolution Act) (750 ILCS 5/101 through 802 (West1998)) provides that the trial court "shall determine custody inaccordance with the best interest of the child" and "shallconsider all relevant factors" set forth in section 602. 750ILCS 5/602(a) (West 1998).

The court shall not consider conduct of a present orproposed custodian that does not affect her relationship to thechild. 750 ILCS 5/602(b) (West 1998); In re Marriage ofPhillips, 244 Ill. App. 3d 577, 583, 615 N.E.2d 1165, 1171(1993). Although it is improper for a court to presume harm to achild, based on the parents' allegedly immoral conduct, evidencebearing on the stability of the child's environment is obviouslyrelevant. Phillips, 244 Ill. App. 3d at 583-84, 615 N.E.2d at1171. Stephen argues that "it is a combination of the conductinvolving the exhibitionism and sexual behavior and the currentliving arrangement which establishes the lack of stability whichRoman needs in his life."

In a decision letter to counsel, prepared February 15,2001, the trial court referenced the various factors identifiedin section 602 of the Dissolution Act and noted its considerationof each of the factors in the instant case. The trial courtnoted the "great amount of evidence *** presented to the court onStephanie's moral indiscretions." The trial court observed thatmost of Stephen's testimony involved the "moral indiscretions" ofStephanie. Stephen offered little testimony about "his interaction and interrelationship with Roman and his desire to spendquality time with Roman." Further, the trial court foundStephen's reaction to Stephanie's behavior "troubling." Thetrial court opined:

"[E]vents that may have otherwise been forgotten have been publicized and emphasized by[Stephen]. Not only has [Stephen] displayedthe incriminating photographs of [Stephanie]to family members, he also published them toothers in the community *** and in the presence of Roman."

The trial court found that Stephanie had established a willingness and an ability to facilitate and encourage a close andcontinuing relationship between Roman and his father. Althoughthe trial court did not condone Stephanie's behaviors, the trialcourt found that "these moral indiscretions do not affect [Stephanie's] relationship with Roman."

We do not find the trial court's grant of custody toStephanie to be an abuse of discretion. As we stated inApperson, in custody cases, seldom is either parent shown to beperfect. Apperson, 215 Ill. App. 3d at 383, 574 N.E.2d at 1261. We do agree with the trial court that the conduct that Stephaniehas chosen to engage in is "troubling" and demonstrates "adeficiency in the maturity and sensibility expected of parents asrole models to their children."

Stephen suggests, in the alternative, a modification ofthe visitation schedule. Stephen argues that the visitationschedule is not in Roman's best interest and that, under thetemporary order, Stephen enjoyed visitation with Roman each week,from Thursday evening to Sunday afternoon. We note that Stephendoes not work on Thursday and Friday. The trial court orderedthat Stephen:

"shall have the following specified rights ofvisitation:

(1) Beginning on Wednesday, February 21, 2001, and every otherWednesday thereafter, from 4:00p.m. to 8:00 p.m.

(2) Beginning on Wednesday, February 28, 2001, and every otherWednesday thereafter, from 4:00p.m. to Friday at 8:00 p.m.

(3) Beginning on Friday, February23, 2001, and every other weekendthereafter, from 4:00 p.m. on Friday to 8:00 p.m. on Sunday.

(4) Petitioner may have other visitation, if the parties so agree."

Further, the trial court provided for holiday visitation andsummer visitation.

This court will not disturb a trial court's decisionregarding visitation unless the decision was against the manifestweight of the evidence, manifestly unjust, or there was a clearabuse of discretion. Stockton v. Oldenburg, 305 Ill. App. 3d897, 906, 713 N.E.2d 259, 266 (1999). The order provides forStephanie to retain custody of Roman over some weekends, daysthat Stephen is required to work. We do not find the trialcourt's decision to be against the manifest weight of the evidence, manifestly unjust, or a clear abuse of discretion.

Stephen next argues that the trial court erred inawarding the marital residence to Stephanie. Stephen assertsthat he should be awarded custody of Roman and "the home thatRoman grew up with." Stephen contends that Stephanie is not ableto maintain the home. A court shall divide the marital propertywithout regard to marital misconduct in just proportions, considering all relevant factors, including the desirability of awarding the family home to the spouse having custody of the children. 750 ILCS 5/503(d)(5), (d)(9) (West 1998). We do not find thatthe trial court erred in awarding the marital residence toStephanie, given that she was awarded custody of Roman. Moreover, Stephanie operates a day care facility, licensed by theDepartment of Children and Family Services, from the home,garnering necessary familial income while providing for Roman'sneeds.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

COOK and TURNER, JJ., concur.