Rehearing Denied Dec. 15, 1980.
See 449 U.S. 1067.
On petition for writ of certiorari to the Supreme Court of
Illinois.
The petition for a writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
This petition raises the significant question whether the State
may deprive a divorced mother of the custody of her children
through operation of a conclusive presumption that her cohabitation
with an unmarried adult male constitutes custody not in the best
interests of the children, however strong the contrary evidence.
Because the decision below 1 conflicts with the import of relevant
precedent of this Court, I dissent from the denial of a writ of
certiorari.
Page 449 U.S.
927 , 928
In December 1976, petitioner Jacqueline was given custody of
their three daughters, then aged 12, 10, and 7. Jacqueline was also
awarded use of the family home and child support; Walter had
visitation rights, and the children regularly spent their weekends
with him. In April 1977, Jacqueline told Walter that her friend,
Wayne Hammon, was going to move into the family home. Walter
objected and one week later filed a custody modification petition,
seeking custody of his children on the grounds that he objected to
his ex-wife's nonmarital relationship and did not wish his
daughters to be raised in what he regarded to be an immoral
atmosphere.
Following a hearing at which Jacqueline, Walter, and Hammon
testified, the Circuit Court modified its original decree and
granted custody of the children to Walter, finding the custody
change necessary for the "moral and spiritual well-being and
development" of the children.
78 Ill. 2d
337, 342, 36 Ill.Dec. 1, 2,
400 N.E.2d
421, 422 (1979). The Appellate Court reversed, reasoning that
the Circuit Court made no finding and identified no evidence that
Jacqueline was unfit to retain custody and, further, that there was
no evidence that the change in custody was necessary to serve the
best interests of the children.
A divided Illinois Supreme Court reversed the Appellate Court
and reinstated the Circuit Court's modified custody decree.
Applying the Illinois rule that a change in custody will be ordered
only if necessary to serve the best interests of the child, the
State Supreme Court found that Jacqueline's ostensible violation of
the Illinois fornication statute 2 evinced a "disregard for
existing standards of conduct [that] instructs her children, by
example, that they too, may ignore
Page 449 U.S.
927 , 929
them, and could well encourage the children to engage in similar
activity in the future." Id., at 346-347, 36 Ill.Dec., at 4, 400
N.E.2d, at 424 ( citations omitted). The court, therefore,
concluded that retention of custody by Jacqueline adversely
affected the best interests of the children since there was a
possibility of harm to them, even though it might become manifest
only in the future, there being no showing of current actual harm.
[
Footnote 3] Stanley v.
Illinois,
405 U.S.
645 (1972), was distinguished on the ground that Stanley
invalidated a conclusive presumption that an unwed father is unfit
to exercise custody over his children, whereas the conclusion in
the instant case rested not on a conclusive presumption, but on a
finding reached after Jacqueline was afforded a full hearing on the
question whether she was an inadequate parent.
The decision of the Illinois Supreme Court that, in effect, a
divorced woman's ostensible violation of the Illinois fornication
statute presumptively harmed the best interests of the children and
that this was conclusive for purposes of custody presents a serious
question under the Fourteenth Amendment. Giving conclusive effect
to such a violation would appear to contravene the teaching of
Stanley v. Illinois :
"It may be, as the State insists, that most unmarried fathers
are unsuitable and neglectful parents. It may also be that Stanley
is such a parent and that his children should be placed in other
hands. But all unmarried fathers are not in this category; some are
wholly suited to have custody of their children. . . . Given the
opportunity to make his case, Stanley may have been seen to be
deserving of custody of his offspring." Id., at 654-655 (footnotes
omitted).
I had supposed that Stanley established the proposition that
"the interest of a parent in the companionship, care, custody,
Page 449 U.S.
927 , 930
and management of his or her children," id., at 651, cannot be
determined by the evidentiary shortcut of a conclusive presumption.
Thus, for purposes of this case, Stanley would seem to foreclose
custody modification on the basis of a similar conclusive
presumption of serious adverse effect on the children's best
interests despite whatever contrary evidence may have been or might
be adduced. This is particularly true since there is no rational
basis for the conclusive presumption actually utilized, whether
Jacqueline is viewed as having violated the fornication statute
only or as being a lawbreaker generally.
Nothing in the record or in logic supports a conclusion that
divorced parents who fornicate, for that reason alone, are unfit or
adversely affect the well-being and development of their children
in any degree over and above whatever adverse effect separation and
divorce may already have had on the children. Illinois seldom, if
ever, enforces its fornication statute 4 and therefore can hardly
contend that there is a rational correlation between divorced
parents who fornicate and divorced parents who impair the healthy
development of their children.
Nor can Jacqueline be presumed to have an adverse effect on her
children's well-being because she is a lawbreaker, for surely such
a presumption would be irrationally overbroad. It would make no
sense to treat murder, fornication, and traffic violations
similarly for purposes of custody and modification. If Illinois'
enforcement record is an indication of how important it views
violations of various laws, it appears that Illinois attempts to
enforce its traffic laws more frequently than its "seldom-enforced
fornication statute." 78 Ill.2d, at 352, 36 Ill. Dec., at 7, 400
N.E.2d, at 427 (Moran, J., dissenting). If Jacqueline had violated
Illinois' traffic laws, she might have lost her driver's license,
but surely not custody of her children.
Page 449 U.S.
927 , 931
Moreover, not only is there no basis for conclusively presuming
that Jacqueline's cohabitation would adversely affect her children
sufficiently to justify modification, but also any such conclusion
is unequivocally rejected by the record which affirmatively shows
that the "children were healthy, well adjusted, and well cared
for." Id., at 351, 36 Ill.Dec., at 6, 400 N.E.2d, at 426
(Goldenhersh, C. J., dissenting). There was no evidence of actual
harm; nor was there evidence, statistical or otherwise, to suggest
that the children's current exposure to their mother's cohabitation
might result in harm to them that might become manifest only in the
future. Surely, in any event, it is no more likely that divorced
mothers who fornicate are unfit than are unwed fathers. Thus, this
case squarely presents the question whether the Due Process Clause
entitles Jacqueline to a meaningful hearing at which the trial
judge determines, without use of a conclusive presumption, whether
violation of the fornication statute adversely affects the
well-being of the children.
Further, we should grant the petition and address the
constitutional question it so clearly presents because the answer
to that question has important implications for many households.
The 1978 Census Bureau Statistics cited by the Illinois Supreme
Court reveal that there are 1.1 million households composed of an
unmarried man and woman and that upwards of 25% of those households
also include at least one child. Id., at 345, 36 Ill.Dec., at 4,
400 N.E.2d, at 424. While the statistics do not reveal how many of
these households were formed after a divorce, and with respect to
which the noncustodial divorced parent may be able to seek custody,
the crude figures alone suggest that the custodial pattern is a
pervasive one.
Accordingly, I dissent from the denial of certiorari and would
grant the petition and set the case for oral argument.
Justice BLACKMUN also dissents from the denial of certiorari and
would set the case for argument.
Footnotes
Footnote 1 78 Ill. 2d
337, 36 Ill.Dec. 1,
400 N.E.2d
421 (1979).
Footnote 2 Section 11-8 of
the Criminal Code of 1961 provides that "[a]ny person who cohabits
or has sexual intercourse with another not his spouse commits
fornication if the behavior is open and notorious." Ill.Rev.Stat.,
ch. 38, 11-8 (1977).
Footnote 3 The best
interests of the child may be sufficiently adversely affected to
justify custody modification under Illinois law where, inter alia,
"the child's present environment endangers seriously his physical,
mental, moral or emotional health. . . ." Ill.Rev.Stat., ch. 40,
610(b)( 3) (1977).
Footnote 4 Illinois did not
enforce its fornication statute in this case.
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