In Re Marriage of Carlson

576 N.E.2d 578, 216 Ill. App. 3d 1077, 159 Ill. Dec. 909, 1991 Ill. App. LEXIS 1342
CourtAppellate Court of Illinois
DecidedAugust 2, 1991
Docket3-90-0622
StatusPublished
Cited by16 cases

This text of 576 N.E.2d 578 (In Re Marriage of Carlson) 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 Carlson, 576 N.E.2d 578, 216 Ill. App. 3d 1077, 159 Ill. Dec. 909, 1991 Ill. App. LEXIS 1342 (Ill. Ct. App. 1991).

Opinions

JUSTICE GORMAN

delivered the opinion of the court:

This appeal is from the circuit court’s denial of the petition of Brenda Carlson (the mother) to remove her two minor children from Illinois. This petition was opposed by Daniel Carlson (the father), who was formerly married to Brenda Carlson. We reverse and remand.

The parties were married in August 1976. Their first child was born in October 1980. Their second child was born in July 1984. The parties’ marriage was dissolved in April 1985. Incorporated into the decree of dissolution of marriage was a settlement agreement, which included provisions for joint custody of the two children. While the mother was denoted therein as the “primary custodian of the children,” the father was granted custody of the children for extensive periods of time. In addition, the custody provisions stated:

“The [father] shall be responsible for major decisions with regard to the education and religious training of the children. It is specifically agreed by the parties that the [father] shall register the children for school from his residence *** [in] East Moline, Illinois.”

While some disagreements arose over interpretation of certain joint custody provisions, the joint custody arrangement has worked reasonably well in this case. The parties have been fit parents and have taken very good care of their children. The children have been excellent students, and have been enrolled in programs for gifted children at their school, the public school in their father’s school district. The father has taken great interest in his children, and especially in their education. He has helped them with their homework almost every school day. The father also has been active in his children’s school activities, and has participated in school programs. The mother has been involved in school activities, but has not assisted the children with their homework since the father has kept that role to himself.

At some point the father remarried, but stayed in East Moline. The father’s new wife has gotten along well with the children and has become involved with some of the children’s school activities and with some school programs.

Sometime around 1987 or 1988, the mother began seeing a man to whom, in December 1989, she became engaged to be married. This man is a vice-president of a bank in Dubuque, Iowa, and owns a small home and the one-acre parcel of land on which the home stands. He has arranged financing for a new, larger home to be built on that land in the event the mother would be allowed to bring her children to Dubuque. The Dubuque area is about 75 miles away from East Moline and about 90 minutes away by car. The mother's plans, in the event she would be permitted to move with her children to Dubuque, are to marry her fiance, quit her job, and move with her children into her husband’s home. She plans to devote her energies primarily to the care of her husband and her children rather than to employment outside the home.

In March 1990 the mother filed a petition under section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (111. Rev. Stat. 1989, ch. 40, par. 609), seeking leave to remove her children from Illinois after her marriage to her fiance. The father opposed this petition. A hearing was held on the petition on May 22, 1990. By the time of the hearing on the petition, the mother and her fiance had set a date for the wedding in August 1990. The trial court denied the petition on August 2, 1990. Afterwards, but also on August 2, 1990, the mother moved for reconsideration of the denial of her petition, a hearing was held on her motion, and the trial court denied her motion. The mother filed her notice of appeal on August 31,1990.

The sole issue is whether the trial court erred in denying the mother’s petition.

We note that in joint custody cases, it is section 609 of the Act that applies to petitions to remove a child from Illinois, rather than section 610 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610), which deals with the more general matter of modifications of custody judgments. (See Winebright v. Winebright (1987), 155 Ill. App. 3d 722, 508 N.E.2d 774; In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 496 N.E.2d 1149.) Section 609 of the Act states in relevant part:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal.” (Ill. Rev. Stat. 1989, ch. 40, par. 609(a).)

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. In re Marriage of Eckert (1988), 119 Ill. 2d 316, 328, 518 N.E.2d 1041,1046.

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, examined the application of section 609 of the Act. While Eckert involved custody awarded to the mother “subject to rather extensive visitation rights” in the father (rather than joint custody), section 609 makes no distinction between cases of joint custody and cases of custody in only one of the parents, and so we find the principles enunciated in Eckert to be applicable to this case. Where both parents have joint custody of a child, a parent’s request to remove the child from Hlinois should be given particularly close judicial scrutiny. (In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 712, 496 N.E.2d 1149, 1154.) However, the trial court must determine whether current circumstances are such that removal from Illinois is in the best interests of the child, and the court is not bound by the prior custody arrangements, even when those arrangements have been by agreement of the parents. Cf. Falk v. Falk (1979), 77 Ill. App. 3d 13, 395 N.E.2d 750 (holding that the best interests of the child overrode a custody provision preventing removal of the child from the Quad Cities area).

In Eckert the Illinois Supreme Court stated:

“A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. [Citations.] There are, however, several factors which may aid a trial court in determining the best interests of the child. The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children.

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In Re Marriage of Carlson
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Cite This Page — Counsel Stack

Bluebook (online)
576 N.E.2d 578, 216 Ill. App. 3d 1077, 159 Ill. Dec. 909, 1991 Ill. App. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-carlson-illappct-1991.