In Re Marriage of Bednar

496 N.E.2d 1149, 146 Ill. App. 3d 704, 100 Ill. Dec. 84, 1986 Ill. App. LEXIS 2681
CourtAppellate Court of Illinois
DecidedJuly 24, 1986
Docket85—2113, 85—2191 cons.
StatusPublished
Cited by16 cases

This text of 496 N.E.2d 1149 (In Re Marriage of Bednar) 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
In Re Marriage of Bednar, 496 N.E.2d 1149, 146 Ill. App. 3d 704, 100 Ill. Dec. 84, 1986 Ill. App. LEXIS 2681 (Ill. Ct. App. 1986).

Opinion

JUSTICE McMORROW

delivered the opinion of the court:

Pursuant to this court’s allowance of her petition for leave to seek permissive interlocutory appeal in accordance with Supreme Court Rule 308 (87 Ill. 2d R. 308), Carol Bednar (Carol) appeals from the order of the Cook County circuit court which denied her motion to dismiss the petition of her former husband, Michael Bednar (Michael), to remove Bradford, the son of Carol and Michael, from the jurisdiction of the State of Illinois. Carol and Michael had previously agreed to the joint custody of Bradford, with Michael to have physical residence of the son and Carol to have substantial and specific rights of visitation. This agreement was embodied in a trial court judgment which dissolved the parties’ marriage in 1984. Since Michael’s petition for removal from Illinois was filed within a few months following the marriage dissolution, Carol filed a motion to dismiss the petition on the basis that a petition for removal where both parents are granted joint custody is, in effect, a petition for modification of custody under section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1983, ch. 40, par. 610). The trial court denied Carol’s motion to dismiss the removal petition, and we granted permissive interlocutory appeal based upon the following pertinent findings and conclusions contained in the trial court’s order of certification:

“The Court finds that Order of June 20, 1985, denying Defendant’s Motion to Strike involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from that Order may materially advance the ultimate termination of this litigation; and that
The question of law involved in the June 20, 1985, order is whether Plaintiff’s Petition for Removal which was filed less than three months after the date of the Court’s joint custody judgment herein is governed by Section 603.1 and Section 610 of the Illinois Marriage and Dissolution of Marriage Act and whether Plaintiff’s Petition for Removal is fatally deficient as a matter of law as a result of its failure to include affidavits showing that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral, or emotional health, as required by Section 610 which states that no motion to modify a custody judgment may be made earlier than two years after its date, unless the Court permits it to be made on the basis of such affidavits.”

We conclude that Michael’s petition for removal is governed by section 609 of the Dissolution Act (Ill. Rev. Stat. 1983, ch. 40, par. 609) regarding removal petitions and does not constitute a “modification of custody” under sections 603.1 and 610 of the Dissolution Act (HI. Rev. Stat. 1983, ch. 40, pars. 603.1, 610). Consequently, we find that Michael’s petition for removal was not deficient as a matter of law because of its failure to include affidavits alleging that there was reason to believe the child’s present environment might endanger seriously his physical, mental, moral or emotional health. (See Ill. Rev. Stat. 1983, ch. 40, par. 610(a).) Accordingly, we remand the cause for further proceedings consistent with the views expressed herein.

Background

Carol and Michael Bednar were married on January 8, 1977. One child, Bradford, was born to the marriage, on February 18, 1978. Their marriage was dissolved pursuant to judgment entered in the Cook County circuit court on June 12, 1984, retroactive to May 2, 1984. At that time, Carol was 27 years old, Michael was 34 years old, and Bradford was 6.

Pursuant to the judgment of dissolution incorporating the parties’ agreement, Michael received residential custody of their son and Carol was granted specified rights of visitation. The trial court’s judgment for dissolution of marriage and other relief of June 12, as ultimately corrected by the trial court in an order entered May 2, 1985, effective nunc pro tunc to June 12, 1984, provided for joint custody as follows:

“That both parties are fit and proper persons to have the joint care, custody, control, health, education and religious training of the minor child, and it is in the best interests of child that both parties have the joint care, custody, control, health, education and religious training of the minor child and, accordingly, the care, custody, control, health, education and religious training of the minor child of the parties shall be jointly vested in the parties.
MICHAEL F. BEDNAR shall have the right of physical (residential) custody of the minor child, and the minor child shall reside primarily with him, subject to the rights of visitation of CAROL S. BEDNAR, which such visitation is as follows:
a. Each Thursday, from 5:00 to 7:00 p.m.
b. The first and third weekend of each month from Friday at 6:00 p.m. to Monday at 8:00 a.m., Carol to return said child to said child’s babysitter.
c. Alternating national and legal holidays.
d. Father’s Day with the father, Michael.
e. Mother’s Day with the mother, Carol.
f. On either the 2nd or 4th weekend of the month from 6:00 p.m. Friday to 6:00 p.m. Saturday.”

Michael’s petition to remove Bradford from the State of Illinois was filed pursuant to leave of court on September 6, 1984. In it Michael alleged that he was presently earning $1,000 per month in pretax salary, and that he had been offered an opportunity for employment as a drywall patchman in the State of Colorado, which provided a starting salary of $600 per week. Michael’s petition also stated that his mother, who lived in California, advised him that she would leave her residence in California and take up residency with him in Colorado, thereby enabling her to provide “constant supervision for the minor child of the parties during such time as [Michael] is employed.” Michael stated in his petition that the present babysitting for the child in Illinois was not accomplished by individuals who are related to Michael.

Michael also alleged in his petition that it would be in Bradford’s best interests for the court to permit removal of the child to Colorado with his father, on the ground that “removal will permit [Michael] to substantially increase his earnings, thereby making greater funds available for the necessary care, health, and welfare of the minor child, and that by virtue of [Michael’s] mother being available to provide both supervision and babysitting chores during the period that [Michael] is at work.”

Michael’s pleading further noted that he was “willing to make adequate provisions” for Carol’s visitation with Bradford to preserve her relationship with the child. He also observed that the increase in his salary “would more than offset any reduction which the Court might grant to [Carol] in the current support allowances provided by her.”

Carol’s motion to dismiss Michael’s petition for removal was filed on September 28, 1984.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Marriage of Fatkin
2019 IL 123602 (Illinois Supreme Court, 2019)
In re Marriage of Fatkin
2018 IL App (3d) 170779 (Appellate Court of Illinois, 2018)
In re Parentage of Rogan M.
2014 IL App (1st) 132765 (Appellate Court of Illinois, 2014)
McQuade v. McQuade
901 P.2d 421 (Alaska Supreme Court, 1995)
In Re Marriage of Creedon
615 N.E.2d 19 (Appellate Court of Illinois, 1993)
In Re Marriage of Yndestad
597 N.E.2d 215 (Appellate Court of Illinois, 1992)
In Re Marriage of Carlson
576 N.E.2d 578 (Appellate Court of Illinois, 1991)
In Re Marriage of Gratz
548 N.E.2d 1325 (Appellate Court of Illinois, 1989)
In Re Marriage of Eckert
518 N.E.2d 1041 (Illinois Supreme Court, 1988)
In Re Marriage of Jones
513 N.E.2d 1181 (Appellate Court of Illinois, 1987)
In Re Marriage of Shalashnow
512 N.E.2d 1076 (Appellate Court of Illinois, 1987)
Winebright v. Winebright
508 N.E.2d 774 (Appellate Court of Illinois, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
496 N.E.2d 1149, 146 Ill. App. 3d 704, 100 Ill. Dec. 84, 1986 Ill. App. LEXIS 2681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-bednar-illappct-1986.