In Re Marriage of Dorfman
956 N.E.2d 1040
Ill. App. Ct.2011Background
- Beth Dorfman filed a petition to remove the minors to Georgia following dissolution of marriage; Barry Dorfman opposed removal and sought to have them return to Illinois.
- Beth and the minors moved to Georgia in June 2010; Beth had sole custody per the dissolution judgment and Barry had supervised visitation previously.
- The trial court conducted hearings in December 2010 and January 2011; Beth testified to fear of Barry and to improved circumstances in Georgia.
- Barry disclosed extensive past mental health issues, prior incarcerations, treatment history, and alleged ongoing abuse, while Beth presented passive and active threats and harassment evidence from Barry’s communications.
- A guardian ad litem (Murr) evaluated the case, recommended denying removal, but the court ultimately granted Beth’s removal petition after considering Eckert factors and related evidence.
- The court noted Barry’s failure to consistently exercise visitation, his ongoing protective order status and ankle monitor, and concluded the move to Georgia would enhance the quality of life for Beth and the children, while visitation could be supervised and arranged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was in the children's best interests under Eckert | Dorfman: removal to Georgia increases safety and quality of life; fear of Barry is well-founded | Dorfman: relocation was improper; Eckert factors do not support removal; fears are not reasonable | Removal affirmed; Eckert factors support relocation and improved welfare |
| Whether the court properly considered evidence and burden of proof on removal | Dorfman: burden on removal properly placed on mover and properly weighed | Dorfman: trial court shifted burden improperly by weighing evidence against defendant | Court properly applied Eckert and did not shift the burden; decision not against weight of the evidence |
| Whether the court erred by not providing Barry with a formal visitation schedule at removal | Dorfman: visitation can be arranged; removal permissible with ongoing visitation | Dorfman: court must grant explicit visitation order at removal | Visitation could be and would be addressed; explicit schedule not required at removal; no abuse of discretion |
| Whether the court improperly relied on electronic communications in the removal decision | Dorfman: electronic communications should not be a removal factor under 609(c) | Dorfman: electronic communications referenced only as a contextual factor for visitation | No improper reliance on electronic communications; factor discussed in context of visitation |
Key Cases Cited
- In re Marriage of Eckert, 119 Ill.2d 316 (1988) (five Eckert factors for removal; standard of review and deference to trial court)
- In re Marriage of Guthrie, 392 Ill.App.3d 169 (2009) (strong presumption in favor of trial court’s removal decision; deference on review)
- In re Custody of K.P.L., 304 Ill.App.3d 481 (1999) (fact-specific approach; no single controlling factor)
- In re Marriage of Repond, 349 Ill.App.3d 910 (2004) (noncustodial visitation considerations; relevance to removal decisions)
- In re Marriage of Collingbourne, 204 Ill.2d 498 (2003) (nonexclusive factors; relocation analysis varies by case)
- In re Diehl, 221 Ill.App.3d 410 (1991) (trial court’s broad discretion in visitation decisions)
- In re Krivi, 283 Ill.App.3d 772 (1996) (illustrates evaluation of removal cases with respect to family dynamics)