*1 III. CONCLUSION stated, For the reasons we affirm the good-faith trial court’s determination.
Affirmed. KNECHT, JJ.,
MYERSCOUGH and concur. FISHER, VINCENT R. Plaintiff-Appellant, WALDROP, v. JILL L. Defendant-
Appellee. Fourth District No. 4 —04—0863 Opinion February 16, filed Rehearing denied March 2005. 2005. *2 McCULLOUGH, J., dissenting. Scott, Scott, PC.,
Gregory Springfield, appellant. A. & for Scott Richmond, Indiana, Waldrop, appellee pro Jill se. opinion of the court:
JUSTICE MYERSCOUGH delivered Plaintiff, Fisher, denying R. the trial court’s order appeals petition permanent injunction granting permission to defendant, Waldrop, parties’ Jill L. to remove the child from the State grant peti- directions to of Illinois. We reverse remand with permanent injunction. tion for
I. BACKGROUND Fisher, Vincent and Jill never married but are the of Callie 6, 8, 2001, petition February May horn on 1998. On Vincent filed a petition custody, and a to establish parent-child relationship establish visitation, Parentage Act support, pursuant and child all Illinois Act) (750 (West 2000)). through On (Parentage of 1984 ILCS 45/1 2, 2002, following hearing, by agree- trial found December court ment the father of Callie. The court parties Vincent was granted liberal visitation to Vin- custody awarded exclusive to Jill cent, alternating overnight every which included weekends and visits Thursday. 5, 2003, July
On Jill married Christopher Kitzke and moved to Williamsville, 2003, Illinois. October Kitzke employ- obtained new Indiana, Hagerstown, ment in approximately located 20 minutes from Richmond, 5, 2003, Indiana. On December Jill notified Vincent that she intended to move Callie to Indiana. Kitzke moved to Richmond 2004, February while Jill and Callie remained in Springfield and lived parents. with Jill’s 24, 2003,
On petition December Vincent filed a for temporary and injunction pursuant section 13.5 of the Act (750 (West 2003)). ILCS Supp. petition alleged 45/13.5 Illinois, removed Callie from irreparable harm would occur to Vincent Callie, and his relationship adequate law, he had no remedy at and the removal of Callie from Illinois would not be Callie’s best requested that, Illinois, interests. Vincent if Jill did move from given Vincent, of Callie be with reasonable visitation privileges granted to Jill.
On December Jill filed petition for leave to Cal- remove January lie from Illinois. On Jill filed a motion to dismiss her remove, claiming leave to section 13.5 of the (750 2003)) governed petitions for 45/13.5 removal in paternity cases and it was Vincent’s burden to show appropriate. The trial court allowed the withdrawal *3 petition in June 2004. granted petition
On March the trial court Heatherton, appointed evaluation and Dr. Brian a clinical psycholo- gist, to evaluate the impact potential of relocation on the relationship of Vincent hearing with Callie. June the court held a on Vin- permanent injunction. cent’s Dr. hearing, Heatherton testified for Vincent at the and the trial report report testimony court admitted his into evidence. The and Callie, Vincent, indicated that Dr. Heatherton met with and Jill individually and also each He observed alone with Callie. unable, however, Kitzke, stepfather, to observe Callie with her because did, however, she did not wish to do so. Dr. Heatherton interview coming together Kitzke and noted Kitzke’s comment that “if arewe going relationship family, [Vincent] [to] as a to have sacrifice his with Callie.” individuals, including
Dr. Heatherton interviewed numerous other grandmother, Beverely Waldrop, kindergarten Callie’s maternal teacher, leader, Peggy Shanle, Daisy and Scout Amber Calvert. Dr. professional Swenny, Heatherton interviewed Matt a licensed clinical counselor, counseling provided family who individual and to Callie year due to Jill’s concerns approximately her mother for one about Dr. Appleton, Callie’s behavior. He also interviewed Helen a licensed psychologist, years clinical saw Callie when she was old who 3V2 “anger[-]control” because of Jill’s concerns that is- displayed Callie sues. Heatherton,
According to Dr. five factors are instrumental to a adjustment upon moving away parent: child’s level of to live with one distress, vulnerability, parental individual risk and level of stress and disadvantage, socioeconomic family process, change family composition. Dr. well-adjusted. Heatherton found Callie to be He did concern, however, have a instability many with Kitzke’s that he had employment transitions. He also noted a risk factor to Callie’s relation- father, ship with her namely, that fathers who lose visitation time over marginalized are away, tend to drift which causes the child to experience loss.
One of Dr. biggest Heatherton’s concerns poor was with the relationship between Vincent and Jill. He noted that how well the parents get along is a big predictor in the father-and-child relation- ship. successful, For the move to be Vincent would have to be informed every failure, Callie’s success and and Vincent given op- must be portunity to opinion articulate his regarding education, Callie’s activity, extracurricular and discipline. Vincent would provide have to type the same of information to Jill when Callie visited him. The lack of communication between Vincent and Jill would affect Callie’s abil- ity adjust to her new surroundings. Dr. Heatherton concluded this factor would have a significant negative effect on relationship Callie’s her should she move to Indiana.
Dr. expressed Heatherton concern with relatively Jill’s new mar- riage and the fact that she and yet Kitzke had to establish themselves as a family. new He also noted that because Callie had in past demonstrated oppositional behavior, may again she do given so transition. Dr. Heatherton believed that during period adjust- ment to the family, new relationship Callie’s with her father would be affected. Although Jill suggested allowing frequent more phone contact and the possibility opening Callie, an e-mail account for Dr. Heath- erton stated phone calls and e-mails do not “fulfill the need for nurturance and human given touch” and age, Callie’s such com- “ munication will lack the ‘rich’ interaction and provided by detail seeing her father.”
Dr. Heatherton acknowledged remarriage often alleviates economic problems experienced by parents custodial in divorce. However, other stressors are associated remarriage with and reloca- adjustment expect
tion. Because Jill and Kitzke could some difficulties employment, relationship affect their with Cal- due to their this would transportation employment lie. He further noted that demands ability transport affect Callie’s thereby would affect Jill’s Callie and fact, In problem already visitation with her father. one such had oc- planned curred. Kitzke informed Dr. Heatherton that he to leave work him Springfield April kept on at noon but a crisis there p.m. until 7 very
Dr. Heatherton noted that Callie was attached to both her expressed mother and father. He concerns that Kitzke commented children, although did that he not have his own such statement is not stepparent. uncommon Dr. Heatherton concluded that Kitzke’s in play part degree view of Callie will to which he becomes at- will, turn, in adjustment. tached to her and affect Callie’s did report Dr. Heatherton’s not issue a recommendation Richmond, Indiana, in whether it was Callie’s best interests to move to request because the trial court did not such a recommendation. report, request, at the court’s Dr. Heatherton stated that the move “significant relationship would have a effect” on Vincent’s Callie. with trial, “significant negative. At he that this effect” stated would safety-education public-
Vincent testified that he was a officer and (ISP) and had information officer with the Illinois State Police been visitation, employed by eight years. ISP He exercised his attended conferences, parent-teacher and often had with Callie at her lunch school. problems experi-
Vincent described some of the he and Jill had him only occasionally gave enced. Vincent claimed that Jill informa- school, concerning tion Callie’s such that Vincent had to contact Cal- directly get teacher information. He and Jill communicated lie’s tell that she mostly by backpack. notes in Callie’s Jill Vincent doing so. Ac- placed therapy Swenny Callie in with until a month after Vincent, cording occasionally telephone interfered with his calls time call. during Callie or would not be home his scheduled with during allegedly Jill also scheduled activities for Callie Vincent’s visita- tion time. moving, including Callie expressed
Vincent his concerns about being approximately the road for the five hours concerns about her on Also, the move Springfield travel to for visitation. it would take to Callie but would af- only relationship affect Vincent’s members, including family relationship with her extended fect Callie’s children) (and Berlin, in their New Vincent’s sister and brother-in-law Fairfield, Illinois; grandmother Illinois; Vincent’s mother Springfield. Charleston, Illinois; and Jill’s *5 in school. He activities in athletic participate would expected Callie attend these events rarely he able to that he would expressed concern sister and Vincent’s affect his visitation. that the activities would relationship with Callie and Vincent’s to their also testified as mother Callie. “exceptional” relationship with during witness Vincent’s hearing as an adverse
Jill testified at the business, crafting her own her behalf. Jill owned case and on own flexibility job. She believed very as a flexible which she described in Indiana. continue would relationship. loving a had admitted that Callie and Vincent relationship, affect acknowledged that the move would
While she upon quality depending think it be adverse she did not providing not together. She denied spent the time Vincent and Callie information to Vincent. family Kitzke had extended neither she nor
Jill admitted Callie would attend yet Indiana. She had not decided which school Vincent on the issue Callie moved to Indiana. Jill did not consult with schooling, despite being required by to do so the court’s of Callie’s custody order. in Richmond and the
Jill described the cultural activities available Jill, moving would they According house in which would live. in Illinois negative impact have a because she could not afford live currently with Although while her husband lived in Indiana. she lived long-term. Living apart her from her parents, she could not do so addition, relationship. husband was difficult on their Jill was pregnant give and due to birth in December 2004. they
Jill believed the move would benefit Callie because would be together family financially proposed as a and be more sound. She weekend, long holiday every including any visitation of third weekends, Christmas, every holiday, alternative school division of Thanksgivings, agreed in the summer. She to mail weeks Vincent, activities, videotape information to school and establish school an e-mail account for Callie. degree
Kitzke testified that he had a bachelor of arts from the He University government of Notre Dame in international relations. quality manager currently employed by Corporation was Auto Car as $60,000 accepting employment year. earned Prior to Corporation unemployed Auto Car in October Kitzke had been manager previous employment quality for six months. His was as homes, in Wanderlodge, company for Blue Bird that builds motor “qual- Valley,Georgia. Fort He had worked in what he described as ity profession” years. He also described his unsuccessful almost employment efforts to find in Illinois.
According Kitzke, good he had a relationship with Callie. He testified impact that the him on if Callie was not allowed to move to Indiana would be that he would provide feel unable to for his wife and Callie and that it would cause an financial emotional and strain on his relationship with Jill.
Swenny testified on Jill’s behalf. He initially Callie in saw March 2003 at request Jill’s problems. behavior He met with Vincent once, at request, because Vincent wanted to know what Swenny doing in therapy with Callie. Vincent did report same problems level of with Callie reported as Swenny Jill. saw Callie approximately weekly until January 2004 and again then March 2004 because Jill was worried about how proceedings these would affect Callie.
Swenny concluded that Callie seemed able to handle new situa- tions better typical than age. children her expressed He opinion that it would not negative for Callie to move. cross-examination, On *6 he admitted that he could give opinion as to how the move would affect Callie and relationship Vincent’s because he did not know anything about Vincent. He also admitted never having met with Kitzke. July
On the trial court entered its order on the for injunction. order, In its the court expressly found that (750 section 13.5 2003)) of the Parentage Act 45/13.5 required establish, Vincent to by preponderance a evidence, of Callie was not in removal her best interests. After reviewing the evidence, the court held as follows: “If the only court were to consider what is in the best interests Fisher,
Callie the court would conclude that it is not in the best interests Callie that she be removed from the State of Illinois. Illinois!,] Springfield, Richmond, move from Indiana!,] will separate Callie from close, a with whom loving she has a relationship; she will be removed from the home in which she has been shortly birth; raised since after her her contact with her family, extended with whom she has a close relationship, will be substantially curtailed; she will move to a location where she has family friends; no extended subjected or she will be to a difficult commute order to visit her family father and other extended members; she moving community is to a that does not have the has; Springfield resources that and strained communications (which between two parent) court attributes to each impossible. will become almost The court also has substantial concern about how Callie will be cared for in !Jill] Richmond when away shows!,] is from home for her craft which are her livelihood. The court has substantial concerns about the nature of the relation- [o]rder[,] Cal- By virtue of this Mr. Kitzke. ship Callie and between adjustment with a new go through period lie will have to adjustment to a period [as] home well step[ jparent her as friends, school, all of which meeting new community,in a new new or her extended her father accomplished without will have to be relies very and on whom she family she is close with whom *** one of Jill’s finding of this court that support. It is a emotional separate away Springfieldwas to marry and move from motives to partly [Vincent] finds [Vincent]. from This court also herself Jill.” upon his conduct towards responsible for this result based Dr. Heather- opinions expressed by The court further found that the Swenny, as his rejected opinions expressed by ton were valid and knowing anything about Vincent and knowing reached without were a new house and based on Callie’s excitement about little about Kitzke Nonetheless, the court found immediately visiting after Richmond. injunctive a denial of the required that the indirect benefits to Callie job in holding well-paying relief. benefits included Kitzke Specific if the pregnancy. expressed Indiana and Jill’s The court concern that from granted, baby separated would be were his/her indirectly father. believed this benefit to Jill benefit The court request Callie and was sufficient to warrant a denial of Vincent’s and set a visitation injunctive relief. The court allowed removal schedule. reconsider,
On motion to the trial court reiterated its belief that the move was not Callie’s best interests but through court was to consider the indirect benefit to Callie reconsider, denying recognized Jill. In the motion to the court those being indirect benefits as Jill her husband and that able to five with improve. appeal Jill’s financial This followed. circumstances would
II. ANALYSIS First, argues that the trial appeal. Vincent raises two issues on he *7 by denying injunction, court erred improperly that placing proof on Vincent the burden of to establish applying removal not in rather than the Callie’s best interests standard, by going beyond the issue before it and Second, permitting argues removal. that even the court issue, it properly considered the removal the evidence established was Although not in Callie’s best interests to be from Illinois. removed court, did a that not file brief with this the claimed error is such we appellee appeal can decide this on the merits without the aid of Jill’s Corp., brief. v. Talandis Construction Capitol Mortgage Corp. See First (1976). 128, 133, 493, 63 Ill. 2d 345 N.E.2d 495 1138 in Background
A. of Act Parentage Removal Cases In married, cases where the of a child were section 609(a) (Mar of the Illinois Marriage Marriage and Dissolution of Act Act) (750 (West 2002)) riage through ILCS 802 authorizes the 5/101 trial court grant parent to leave to a custodial to remove the child from the state:
“(a) leave, may grant judgment, any The court before or after to party having custody any of minor child or to children remove such child or children from approval Illinois whenever such inis the best proving interests such child or children. The burden such removal is the interests of best such child or children is on 5/609(a) (West2002). party seeking the the removal.” 750 ILCS 2003, Parentage Prior to incorporate the Act did not section 609 of the Marriage Act, therefore, provision apply such to unmar ried parents. Melton, 124, 129, v. Ill. App. Harbour 333 3d 775 N.E.2d 291, (2002); 294-95 see Parentage of R.M.F., also In re 275 Ill. App. 3d (1995) “[bjecause 43, 50, 1137, 655 N.E.2d 1142 (holding that the Parentage provisions Act contains no requiring actions for pursuant Act, removal be resolved Marriage to section 609 of the we find that Marriage section 609 of the Act is implicitly incorporated Act”). Instead, into the the Parentage peti noncustodial could visitation, tion custody for modification of a require or which analysis pursuant the Marriage best-interests to section 602 of Act (750 (West 2002)). R.M.F., 50-51, App. ILCS 275 Ill. 3d at 655 5/602 N.E.2d at 1143-44. 2003, legislature Parentage
In amended the specifi to (2003 cally § July address removal. Pub. Act eff. 93— 1304-07). Ill. Legis. particular, legislature Serv. In amended Act, section 14 pertaining judgments, provide to removal, visitation, determining custody, joint custody, “[i]n or Act], apply [Marriage court shall the relevant standards of the added.) 45/14(a)(l) including (Emphases [s]ection 609.” (West 2003). Further, Act, Supp. pertain 16 of section modification, ing specifically provide was amended to that the trial jurisdiction any court had an order and that modify of removal judgment removal modification was accordance with the fac Act, specified including tors 609. 750 ILCS Marriage 2003). section, legislature Finally the added new 45/16 provides, part: which in relevant
“(a) any under Act for the initial brought action this or for custody or visitation of a child modification determination order, court, upon application of custody or prior visitation may enjoin having physical or any party, party possession
1139 removing the child permanently temporarily from or of a child custody of adjudication of issues pending Illinois the the from child, enjoin removal of a the deciding to When whether visitation. factors, including, but not following consider the [c]ourt shall limited to: (1) by child the involvement with the previous the extent of removal; seeking enjoin to
party (2) established; and parentage will be the likelihood that (3) financial, emotional health impact physical, and the on the child. party enjoined removing from the being of the (b) governed Act he the Injunctive relief under this shall [(735ILCS provisions of the Code of Civil Procedure relevant 5/1— (West (West2002))].” Supp. through 750 ILCS 101 22—105 45/13.5 2003). intent, determining must first look at legislative the court When Mathew, 336 language. the the v. Ill. plain meaning statutory Long of (2003). 595, 603, 1076, plain meaning of App. 3d 783 N.E.2d 1082 legislature’s provide to statutory language the the intent evidences First, by which a changes. provide two the amendments a means parent may removing the custodial from prevent noncustodial state, established, while parentage the child from the before even (West 2003); Supp. see custody pending. issues are 750 ILCS 45/13.5 Assem., Proceedings, also Ill. March at 24 93d Gen. House (statements (“House deals Representative Fritchey) Bill 1382 with the the a child dealing issue of court orders removal of while Second, the pending”). specifically there’s issues amendments Marriage Act, thereby requiring 609 incorporate section of the custodial to seek to remove child from the state under leave (West 45/14(a)(l), the forth 16 standards set in section 609. 750 ILCS 2003). Supp. find intend to shift the legislature We that the did not (750 609(a) the Act Marriage burden articulated section ILCS 2002)) 5/609(a) (West seeking under party 2003)). (West (750 Parentage 13.5 Had Supp. of the Act ILCS 45/13.5 so, provision it do it intended to would have added similar 14(a)(1) (750 contained in Act sections and 16 of ILCS 2003)) 45/14(a)(l), Supp. specifically incorporating (750 Marriage relevant standards contained in section 609 of the (West 2002)). Consequently, proving burden 5/609 in the best child the party removal is interests of the remains with seeking to remove child.
B. Trial Judgment Against Court’s Was Weight Manifest Evidence case, petition injunc- In this his brought 13.5(b) pursuant tion to section 13.5 of the Act. Section specifically incorporates provisions the relevant the Code of Civil 45/13.5(b) (West 2003). Procedure. 750 ILCS To succeed on enjoin Illinois, removing from Callie from Vincent was (1) clearly affirmatively prove he had a clear and (2) ascertainable right protection, need of irreparable harm would (3) injunctive result if relief was no granted, adequate remedy Bogner at law existed. 679, v. Villiger, App. 343 Ill. 3d 796 N.E.2d *9 (2003); Hoffmann, 685-86 App. 459, v. 59 Ill. 2d 461- Hoffmann (1965). 62, 13.5(a) 579, 208 N.E.2d 580 Section also sets ad- forth court, by ditional be including, factors to considered the trial not but (1) to, limited extent previous by the of involvement the noncustodial (2) (3) parent; established; parentage the likelihood will be and the impact parent financially, emotionally, on the custodial physically 45/13.5(a) (West enjoined if removing Supp. from the child. 750 ILCS 2003). A judgment permanent trial a injunction court’s on be will not against reversed weight unless it the manifest the of evidence such opposite Ramlose, that the result is clearly evident. re Estate 344 of (2003). 573, App. 564, 76, Ill. 3d 801 83 N.E.2d case, In this the trial court blurred the distinction between sec tions 13.5 and 14 of the Act. than applying Rather the permanent standards for injunction and applying the factors 13.5, articulated in placed the court on Vincent the burden of proving that removal was not in Callie’s best interests. While the best interests of Callie were factor certainly by to be considered the court injunction, in determining grant whether to the was Vincent not also that prove removal not be in Callie’s would best interests. Assem., 13, 2003, 93d Proceedings, See Ill. Gen. House 24 March at (statements (“[House Representative Fritchey) of Bill 1382] also always mandates the into the courts take consideration best interest issuing the of child in orders that would restrict removal of a child resolution”). 609(a) pending custody Marriage issue Section Act, by which specifically incorporated was into the Public Act expressly places proving the burden removal 93— be in upon parent seeking would the child’s best interests removal. 5/609(a) 2002). However, 750 ILCS court did find trial interests, deny removal was not in Callie’s best so its decision to permanent injunction against weight was the manifest the evidence.
The evidence demonstrated that Vincent had clear and ascer- established, right. Paternity presented tainable had and Vincent been relationship evidence about his with Callie. The trial court extensive close, relationships in acknowledged loving even its order Callie’s with and her family. Vincent extended
1141 result irreparable harm would established Vincent also he and evidence that granted. presented He relief injunctive removed, the were and that if Callie difficulty communicating had given relationship with Callie would his lack communication affect numerous fact, acknowledged the trial distance. In court the reasons, move, including it would not be Callie’s best interests extended separated be from her father her the fact she would also a difficult commute. The court family and that she would face Heatherton, included expressed by Dr. which valid the concerns found relationship with Vincent would Dr. Heatherton’s concern that Callie’s no proved also he had negatively be affected the move. Vincent adequate remedy at law. injunction properly impact trial court considered financial, Jill. See have on the and emotional health of physical,
would
45/13.5(a)(3) (West
2003).
The evidence demonstrated
750
Nonetheless,
impact
that the
Jill would
tremendous.
the court
on
injunction
denying
still erred
the motion for
because
relief,
only
prove
injunctive
entitlement
the court
specifically found removal was not Callie’s best interests.
supported
The trial
denial of
the basis
court
its
on
husband,
being
that the benefits to
her
which
benefit
Jill —
financially
In In
emotionally
indirectly
her
benefit Callie.
—would
Marriage
re
Ill. 2d
N.E.2d
Collingbourne, 204
(2003),
Supreme
recognized
the Illinois
there is a
Court
that because
*10
quality
parent
“nexus between the
life of the
and the
custodial
child,”
life
quality of
of the
the court must consider the indirect
However,
benefits of the
paramount
move.
the
issue remains the best
Collingbourne,
interests of the
at
child.
Despite finding an to the trial never indirect benefit court in benefit, stated that due to such it was best interests to be Callie’s Instead, from that indirect removed Illinois. the court stated the injunction, deny benefits the court to the that such benefits injunction, warranted the and denial of the indirect benefits injunction. favored a denial of the Because the court found it was not move, in best and Callie’s interests to because the evidence established proved injunction, he was to entitled we petition reverse the court’s denial of for permanent injunc- tion.
We also reverse the trial judgment court’s to granting permission Jill petition to remove Callie from No pend- Illinois. for removal was ing court, the before and the did not Jill require prove court to removal in authority was Callie’s best interests. the Because court was without grant Illinois, permission doing from judgment remove Callie its not, so must be This however, preclude reversed. decision does petition from filing upon remove remand.
III. CONCLUSION herein, For the reasons stated we the judg- reverse trial court’s ment denying petition injunction for permanent granting and permission to Jill to remove Callie. The cause is remanded direc- grant tions to for permanent injunction. and
Reversed remanded with directions.
STEIGMANN, J, concurs. McCULLOUGH, dissenting: JUSTICE permanent injunction Vincent is not entitled to a order. I disagree proof entitling there entry has been of an injunction in court, five-page order, order. The trial its detailed consider the involvement of the parent impact noncustodial and the on the financially, custodial emotionally, and physically enjoined removing from the child.
I do agree majority proper with the that the method determine the merits of the moving child’s out the State of Illinois controlled 609 of Marriage section Act. give thoughtful
The trial court did serious consideration making ruling its and did consider the set factors forth 13.5(a) permits Act. Section 13.5 against party having removing any physical custody of the child from “pending adjudication the child issues of visita- 45/13.5(a) (West 2003). tion.” 750 ILCS set forth in factors 13.5(a)(1) 13.5(a)(3) proper sections are considerations determining the best interest of the child. It is clear from the trial *11 court’s it adjudicate order the issues of visitation. Act, As pointed majority, out amended effec- July incorporated tive into ad- of the child was interests The issue of best removal cases. 609. in the context of section by the court dressed injunction but sum, not enter this court should the best interests to consider case to the trial court remand this should 609. child, Callie, by section as cumbersome, but in our get lost Callie will Hopefully, system. necessary, judicial sometimes al., Situated, Similarly and on Behalf Others K. RAGANet Indiv.
SANDRA CORPORATION, Defendant-Appellant. T Plaintiffs-Appellees, v. AT AND Fifth District No. 5 — 03—0038 Rehearing Opinion denied March 2005. filed March 2005.