In re Custody of G.L.
2017 IL App (1st) 163171
| Ill. App. Ct. | 2017Background
- Parents Matthew L. and Sarah Finn (formerly Czerwinski) share a son, G.L. (b. 2010); the parties separated in late 2012 and Sarah later moved to Champaign County with the child.
- Matthew filed a parentage/allocation petition in Cook County in 2013; proceedings included an independent custody evaluator (Gould) and a guardian ad litem (Wasko).
- At an October 2016 evidentiary hearing the court heard testimony about parental caregiving, parental mental-health diagnoses, the child’s separation anxiety, the 170-mile distance between homes, and differences in school quality between Wilmette and Philo/Champaign County.
- The trial court awarded Matthew majority parental decision-making on education/medical/extracurriculars, designated him the residential parent, granted Sarah every-other-weekend parenting time (with other allocated times), ordered Sarah to return to the Chicago area (within 25 miles of Matthew) and restricted her routine parenting time to locations within a one-hour drive of Matthew’s home.
- Sarah appealed, arguing the court failed to consider required statutory factors, improperly restricted her parenting time and residence, and allowed improper testimony about education; the appellate court affirmed in part, vacated in part, and remanded.
Issues
| Issue | Plaintiff's Argument (Sarah) | Defendant's Argument (Matthew) | Held |
|---|---|---|---|
| Sufficiency of the record on appeal | The record deficiencies are Matthew’s fault because he failed to file admitted exhibits | Matthew says missing exhibits (e.g., evaluator reports) require doubts to be resolved against Sarah | Appellate court found record sufficient for review; any missing exhibits wouldn’t change disposition |
| Was Sarah’s counterpetition a valid relocation petition? | Her counterpetition effectively sought designation of Champaign County as the child’s primary residence and therefore should be treated as a relocation request | Matthew: she never filed statutorily required notice/petition under §609.2 and did not ask relocation below; issue waived | Waived on appeal and substantively inadequate to satisfy §609.2; not a valid relocation petition |
| Restriction of parenting time and order to relocate | Restriction and relocation order are improper absent compelling reasons; parent may generally relocate within state | Matthew: distance harms child’s best interests; court properly limited parenting time for child’s welfare | Vacated in part: restriction is a "restriction on parenting time" under §600 and required an explicit finding by preponderance that Sarah’s parenting beyond one hour would seriously endanger the child’s physical, mental, moral, or emotional health; remanded for that factual finding |
| Admissibility/relevance of testimony about school quality | Testimony comparing Wilmette/Philo schools was speculative and irrelevant | Matthew (and evaluator): school quality is relevant to child’s best interests | Court may consider school quality; Arcaute (pre-school child) is inapposite here because G.L. was school-aged and enrolled; testimony was properly relevant |
| Consideration of statutory factors in allocating parenting time | Trial court failed to explicitly address all §602.7(b) factors (esp. caretaking time in prior 24 months and child’s adjustment to Champaign) | Trial court is presumed to have considered the factors and its credibility findings support the allocation | Affirmed: court’s allocation of parenting time not against manifest weight; presumption that trial court considered statutory factors applies; credibility determinations upheld |
Key Cases Cited
- Foutch v. O'Bryant, 99 Ill. 2d 389 (appellant bears burden to present sufficiently complete record on appeal)
- Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356 (proponent of evidence has duty to file documents with trial court)
- In re Marriage of Samardzija, 365 Ill. App. 3d 702 (2006) (pre-repeal rule that custodial parent need not seek permission before moving within Illinois; not controlling under current relocation statute)
- Sussenbach v. Sussenbach, 108 Ill. 2d 489 (trial court best suited to judge witness credibility in custody matters)
- In re Marriage of Bates, 212 Ill. 2d 489 (deference to trial court when multiple inferences are possible)
- In re Marriage of Arcaute, 261 Ill. App. 3d 263 (1994) (school-quality evidence held irrelevant for custody decision concerning a pre-school child)
- In re Marriage of Taylor, 251 Ill. App. 3d 58 (courts may consider school quality as relevant to child's best interests)