449 U.S. 927 (1980)

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U.S. Supreme Court

JARRETT v. JARRETT , 449 U.S. 927 (1980)

449 U.S. 927

Jacqueline JARRETT
No. 79-1735

Supreme Court of the United States

October 20, 1980

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 [449 U.S. 927 , 929]

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