Ford v. Marteness

857 N.E.2d 355, 306 Ill. Dec. 262, 368 Ill. App. 3d 172, 2006 Ill. App. LEXIS 1012
CourtAppellate Court of Illinois
DecidedOctober 27, 2006
Docket4-06-0065
StatusPublished
Cited by7 cases

This text of 857 N.E.2d 355 (Ford v. Marteness) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Marteness, 857 N.E.2d 355, 306 Ill. Dec. 262, 368 Ill. App. 3d 172, 2006 Ill. App. LEXIS 1012 (Ill. Ct. App. 2006).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, Desiree Ford, mother and custodial parent of Noah Ford, pursuant to section 14 of the Illinois Parentage Act of 1984, filed a petition in the Livingston County circuit court seeking to remove Noah from the State of Illinois to Colorado due to her pending marriage with Anton Giacometti. 750 ILCS 45/14 (West 2004). Defendant, Steven Marteness, Noah’s father, filed a petition requesting the trial court deny removal. In December 2005, the trial court denied the removal petition. This appeal followed. We reverse and remand with directions.

I. BACKGROUND

Noah Ford was born on August 25, 1999. His parents, Desiree, 27 years old, and Steven, 48 years old, have never been married to each other and never lived together.

Desiree is seeking removal so she can move Noah to Colorado to live with Giacometti. Desiree and Giacometti were engaged to be married on March 17, 2006. At the time of trial, Desiree lived with her parents in Dwight, sharing a bedroom with Noah. She was employed as a bartender and worked three nights a week. Her average income was $300 per week.

Steven lives in Peoria. At the time Desiree became pregnant, he lived in Joliet but moved shortly after the pregnancy. When Desiree first told Steven she was pregnant, Steven suggested she have an abortion. Whatever relationship the two had effectively ended at this point. Steven moved to Peoria. He did not contact Desiree during the pregnancy and was not present when Noah was born. He did not see Noah until three to four months after Noah’s birth, after Desiree initiated contact.

Steven has another child and pays child support for that child. After his child-support payments, Steven earns approximately $30,000 per year. He is entitled to visitation with Noah from 7 p.m. Friday evening until 7 p.m. Sunday evening on alternating weekends. In practice, however, Steven has Noah from noon on Saturday until 6 p.m Sunday. Other than this visitation, Steven and Noah have little other contact.

Desiree’s fiancé at the time of trial, Giacometti, lives in Greeley, Colorado. Greeley is approximately 45 miles north of Denver. He is 36 years old and has never been married. He is employed as an assistant pressman at R.R. Donnelley and earns between the mid 40s to $50,000 per year. Giacometti has been employed at Donnelley’s for 15 years, earning promotions throughout the years. In 1999, Giacometti purchased a two-bedroom, 1,600-square-foot home in an area of Greeley, where property values have been increasing. He has a good relationship with Noah and has taken him fishing and to baseball games, and he plays video games with him.

Upon moving, Desiree intends to quit her job as a bartender and attempt to obtain employment in Greeley. She stated she did not want to bartend anymore and instead would look for a daytime job. She is very close with her parents. She has lived with them most of her life. During trips to Illinois to visit her parents, Desiree has stated she would contact Steven so he could visit Noah. She has stated Noah could fly from Denver to Chicago to visit Steven for extended periods during the summer and Christmas. Giacometti testified he had no problem with Steven visiting Noah in Colorado.

The trial court made a determination of the best interests of the child based on these facts. After weighing the factors outlined in In re Marriage of Eckert, 119 Ill. 2d 316, 329-30, 518 N.E.2d 1041, 1046-47 (1988), the court determined removal was not in Noah’s best interests and denied Desiree’s petition. Desiree appeals.

II. ANALYSIS

In removal cases where the custodial parent and noncustodial parent were never married, the Illinois Parentage Act states a court is to apply section 609 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/609 (West 2004)). Fisher v. Waldrop, 221 Ill. 2d 102, 114, 849 N.E.2d 334, 341 (2006). When a party with custody of a minor child seeks to remove the child from Illinois, it is incumbent upon the party seeking removal to prove removal is in the best interest of the child, considering the impact on visitation, as well as other relevant factors. 750 ILCS 5/609(a) (West 2004). The custodial parent has the burden to establish that the move would be in the child’s best interest. Eckert, 119 Ill. 2d at 329-30, 518 N.E.2d at 1046-47. “A trial court’s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred.” Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.

In deciding whether removal is in a child’s best interest, the trial court should hear all relevant evidence. There is no “simple bright-line test,” but determinations must be made on a case-by-case basis depending on the circumstances of each case. Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045. The supreme court has suggested five factors that may aid a trial court. The trial court should consider (1) the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent resisting the removal; (4) the visitation rights of the noncustodial parent; and (5) if a realistic and reasonable visitation schedule can be reached. Eckert, 119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.

No one factor is controlling. The Eckert factors are to be considered and balanced by the trial court when making its determination, “ ‘and the weight to be given each factor will vary according to the facts of each case.’ ” In re Marriage of Collingbourne, 204 Ill. 2d 498, 523, 791 N.E.2d 532, 546 (2003), quoting In re Marriage of Smith, 172 Ill. 2d 312, 321, 665 N.E.2d 1209, 1213 (1996).

The trial court found the move would enhance the quality of Desiree’s life. She would be living with her husband and son in a 1,600-square-foot home in Greeley, Colorado. Her husband would be supplying financial support. The court found no further benefit for the move to Greeley, Colorado, because nothing was introduced into evidence about crime rates, test scores, and schools. The court found the only increase in quality of life for the child would be that he would be with his mother.

The trial court found Desiree’s removal motive was not a ruse but a genuine desire to move based on Desiree’s love for her fiancé. The court also found Steven’s motive for resisting removal was not in bad faith but to only maintain contact.

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Bluebook (online)
857 N.E.2d 355, 306 Ill. Dec. 262, 368 Ill. App. 3d 172, 2006 Ill. App. LEXIS 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-marteness-illappct-2006.