And while the court, in a petition to modify a decree as to custody of a minor child, is not limited in the scope of its inquiry, it may not overrule the findings in the original decree and may not use the transcript of the evidence in the divorce proceeding as a basis for a ruling in the modification question. Handrich v. Handrich, 339 Ill. App. 151; Dunning v. Dunning, 14 Ill. App.2d 242; Nye v. Nye, 411 Ill. 408. As said in the Nye case "In proceedings involving child custody the order of the court or judge having competent jurisdiction is a final order, and is binding upon the parties under the same facts and so long as the same conditions exist as did at the time of the hearing and order." In this case, at the divorce hearing, the court held that the plaintiff was a proper person to have the custody of the child, holding so in this language: "Plaintiff is fit and proper person to have care, custody, control and support of minor.
• 1-3 It is well settled in Illinois that a decree for divorce cannot be modified or amended unless there has been a material change of circumstances since the entry thereof. ( Taylor v. Taylor, 32 Ill. App.2d 45, 48, 176 N.E.2d 640; Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535; Wade v. Wade, 345 Ill. App. 170, 102 N.E.2d 356.) A decree fixing the education of children is final and res judicata and should not be altered or amended unless new facts have arisen since the entry of the decree which make it necessary, in the best interests of the child, that the decree be changed. ( Taylor v. Taylor, supra, at 48; Wade v. Wade, supra.) In a post-decree hearing to modify the child-custody provisions of a decree, the party seeking the modification has the burden of proving altered conditions. ( Eggemeyer v. Eggemeyer, 86 Ill. App.2d 224, 230, 229 N.E.2d 144; Hirth v. Hirth, 59 Ill. App.2d 240, 207 N.E.2d 114.) Every presumption is indulged in favor of the validity of the decree, and if its provisions are to be changed, the burden of proof is on the moving party to show why the change should be made. Eggemeyer v. Eggemeyer, supra, at 230; Hirth v. Hirth, supra, at 243.
This statement aptly covers the situation here. For cases in which the change in circumstances was held sufficient to justify a change in custody, see Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535; Frank v. Frank, 26 Ill. App.2d 16, 167 N.E.2d 577; and Mabbatt v. Mabbatt, 78 Ill. App.2d 455, 223 N.E.2d 191. [7] We find the trial court's decision to be amply supported by the record.
[1, 2] It is well settled in Illinois that a decree for divorce cannot be modified or amended unless there has been a material change of circumstances since the entry thereof. Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535; Wade v. Wade, 345 Ill. App. 170, 102 N.E.2d 356; Wick v. Wick, 341 Ill. App. 478, 94 N.E.2d 602; Maupin v. Maupin, 339 Ill. App. 484, 90 N.E.2d 234; Thomas v. Thomas, 233 Ill. App. 488. To paraphrase Wade v. Wade, supra, a decree fixing the education of children is final and res judicata and should not be altered or amended unless new facts have arisen since the entry of the decree which make it necessary for the welfare of the child to be changed. "The changing circumstances must be, obviously, those that affect the children, — not those that concern the parents."
The courts of Illinois have repeatedly held that a permanent custody order is a "final judgment" as to circumstances existing at the time it was rendered. Hofmann v. Poston, 77 Ill. App.3d 689, 396 N.E.2d 576 (1979); Herron v. Herron, 74 Ill. App.3d 748, 393 N.E.2d 1153 (1979); Rippon v. Rippon, 64 Ill. App.3d 465, 381 N.E.2d 70 (1978); Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535 (1957); Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300 (1952). Whether a custody order is temporary or permanent and final must be determined according to the substance, not the form, of the order.
Subsection (b) of section 610 of the Act is a codification of existing Illinois case law. (See Nye v. Nye (1952), 411 Ill. 408; Wells v. Wells (2d Dist. 1976), 36 Ill. App.3d 488, 344 N.E.2d 37; and Dunning v. Dunning (2d Dist. 1957), 14 Ill. App.2d 242, 144 N.E.2d 535.) Even though these cases antedate the new act, they are nevertheless of value in that they impose the same criteria as are now deemed relevant under the new act.
The party seeking to alter the custody provisions has the burden of proving that the children's best interest requires such a change (Hirth v. Hirth, 59 Ill. App.2d 240, 207 N.E.2d 114 (1965)) for the paramount concern must always be the welfare of the children. Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535 (1957)."
• 2, 3 The courts are mindful that stability in a child's environment is a weighty factor ( Stickler v. Stickler, 57 Ill. App.2d 286, 290 (1965)), and, in that concern, a sound principle of law has evolved: custody will not be altered unless there has been a change in circumstance which involves the child's welfare. (See Nye v. Nye, 411 Ill. 408, 416 (1952); Dunning v. Dunning, 14 Ill. App.2d 242, 250 (1957).) One of the factors to be considered in a change of custody action is the preference of the child involved ( Rosenberger v. Rosenberger, 21 Ill. App.3d 550, 553 (1974)), although it has been repeatedly stated by the Illinois courts that the child's preference for a change of custodial parent, without showing that the welfare of the child is affected, is not a sufficient change of circumstances to warrant a custody change.
The party seeking to alter the custody provisions has the burden of proving that the children's best interest requires such a change (Hirth v. Hirth, 59 Ill. App.2d 240, 207 N.E.2d 114 (1965)) for the paramount concern must always be the welfare of the children. Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535 (1957)."
The party seeking to alter the custody provisions has the burden of proving that the children's best interest requires such a change (Hirth v. Hirth, 59 Ill. App.2d 240, 207 N.E.2d 114 (1965)) for the paramount concern must always be the welfare of the children. Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535 (1957)."