In re Marriage of Eckert

499 N.E.2d 627, 148 Ill. App. 3d 512, 102 Ill. Dec. 70, 1986 Ill. App. LEXIS 2944

• Court: Appellate Court of Illinois
• Decided: October 16, 1986
• Docket: No. 5—85—0630
• Status: Published

Opinions

JUSTICE JONES

delivered the opinion of the court:

Petitioner (mother) appeals an order of the trial court that denied her petition for leave to remove the parties’ minor child from Illinois to Arizona.

Petitioner and respondent (father) were married on June 30, 1976, in Belleville. One child was born of the marriage, Matthew, age seven years at the time of the hearing on the instant petition. The parties’ marriage was dissolved by a judgment of the circuit court of St. Clair County entered on December 18, 1983. The judgment awarded custody of Matthew (Matt hereafter, as he is referred to by the parties) to the mother with detailed and rather extensive rights of visitation specified for the father. The marriage was the second one for the mother. She had previously married a military serviceman who had been killed in action in Viet Nam. The mother had a son from her first marriage, Bemie Plassmeyer, age 15 and a high school sophomore at the time of the hearing. Bernie has a progressive type of asthmatic condition.

On May 23, 1985, the mother filed a petition for leave to remove Matt from the jurisdiction to Yuma, Arizona. The basis for removal was stated to be that the mother, a professor of nursing, had obtained employment in Yuma and that it would be in Matt’s best interests to remain in her custody and be permitted to leave Illinois. The father filed his response to the petition in which he asserted that the mother’s interest in moving to Yuma was for selfish reasons and not in the best interests of the child. The response further asserted that the proposed move would be detrimental to the mental health and welfare of the child and would irrevocably injure the parent-child relationship between father and son. At the same time that the father’s response to the petition was filed, the father also filed a petition to modify the judgment of dissolution of marriage by awarding him the custody of Matt. The father’s petition to obtain custody is not involved in this appeal.

A hearing was held on the petition and response, and the issue was sharply contested. We need not set forth in any detail the evidence adduced. Although each party made some attempt to disparage the custody circumstances of the other, it can be said that the record shows both the mother and father to be excellent, loving parents who are dedicated to the proper nurture and upbringing of their son. In fact, both mother and father may be said to be exceptional in their concern that Matt receive proper care and attention. In this regard Matt is obviously more fortunate than most children of broken families. The father is assiduous in the exercise of his rights of visitation with Matt and regularly takes him to interesting events and activities. It is obvious, too, that Matt has developed a real attachment to his father as well as to his mother. The natural consequence of the parental concern and affection displayed by both parents is that Matt is an especially well adjusted and happy child.

The court appointed a psychologist to examine the three family members for the purpose of determining what impact a move to Yuma might have on Matt. His report to the court could be- regarded as neutral, but it concluded with a recommendation that Matt remain in the St. Clair County area so as to be better able to keep in contact with his extended family and maintain his frequent contacts with his father. The psychologist’s report is silent as to any effects upon Matt if he were to remain in Belleville while his mother is in Yuma.

The trial court made extensive findings in its order denying petitioner the right to remove Matt to Yuma. Such findings concluded with: “A move to Yuma (disregarding the effect of a diminishment of visitation and contacts with the minor’s extended family) would be neutral. *** When this exceptional relationship [between Matt and his father], in a nurturing environment, is viewed against a neutral effect of a move to Yuma, the child’s best interests are favored by a continuation of the present situation.”

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat., 1984 Supp., ch. 40, par. 609), states:

“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. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.”

Petitioner contends that she has met the statutorily imposed burden of proof that the move to Yuma would be in the best interests of Matt and that the finding of the trial court to the contrary was against the manifest weight of the evidence. We agree and reverse the order of the trial court.

This court recently considered section 609 of the Illinois Marriage and Dissolution of Marriage Act in the case of In re Marriage of Lichtenstein (1986), 139 Ill. App. 3d 881. There the trial court had granted the mother the right to remove two minor children from the jurisdiction to Germany. On appeal by the father, we affirmed the trial court. While noting that a petitioner has the burden of proof that removal is in the best interests of minor children, we said, in accord with In re Marriage of Brady (1983), 115 Ill. App. 3d 521, 450 N.E.2d 985:

“[A] prima facie case is presented when the petitioner shows a sensible reason for the move and makes a showing that the move is consistent with the child’s best interests. Because a child usually receives little, if any demonstrable benefit from moving, a direct benefit need not be shown.” (In re Marriage of Lichtenstein (1986), 139 Ill. App. 3d 881, 887.)

Admittedly, the Lichtenstein case differs from this in that in Lichtenstein the trial court had found the move to Germany in the best interests of the child, whereas in this case the trial court found the move to Yuma was not in Matt’s best interests. However, this distinction is not a telling one, for, irrespective of whether the trial court grants the right to remove or refuses it, the prime considerations remain the best interests of the child and the burden of proof to be borne as a prerequisite to permission to remove. Consideration on appeal of an order upon a petition to remove turns upon whether the decision of the trial court is against the manifest weight of the evidence. Gallagher v. Gallagher (1978), 60 Ill. App. 3d 26, 376 N.E.2d 279.

It was demonstrated in In re Marriage of Brady (1983), 115 Ill. App. 3d 521, 450 N.E.2d 985, that case law interpretation of section 609 concerning the burden of proof to be borne by one seeking the removal of a minor child was not changed by the July 1, 1982, amendment that expressly placed that burden upon a petitioner. Accordingly, cases predating that amendment remain authoritative, as was noted in Brady. Our reading of the cases that have considered section 609 decided both prior and subsequent to the July 1, 1982, amendment points to a somewhat liberalized but nevertheless realistic approach to a nettlesome problem: under what circumstances should courts permit removal of minor children from the jurisdiction and under what circumstances refuse it. The indicated trend is decidedly to permit removal unless rather strong negative circumstances militate against it. The trend in the cases we note has been established within the context of the consideration of the best interests of the minor children involved. Policy considerations are obviously important. Custodial parents frequently must move to other States or countries in order to pursue opportunities for improvement. Our free society is loath to condemn or restrict one in his or her endeavors to improve one’s lot in life, or, for that matter, to decide simply to go elsewhere. Certainly ours is a fluid society and a move from one State to another gathers little comment. However, complications arise when minor children of dissolved marriages are involved. The law grants rights to noncustodial parents to continue to share in the nurture, love and enjoyment of the minor children. Removal of the children from the jurisdiction means that the rights of the noncustodial parent may have to give way to some extent to the desires of the custodial parent. The stress thus created is not easily resolved and certainly cannot yield to the application of a formula. Each case is different, of course. Many factors are to be considered as they touch upon the best interests of the children.

As we have stated, we detect a liberal approach in the cases, an apparent willingness to permit removal unless negative factors dictate otherwise. Dilution of rights of visitation have not constituted such negative factors that will prohibit removal.

In In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 408 N.E.2d 37, the mother was given custody of three minor children and later decided upon a move to California. The mother had a job there, and the circumstances of housing and school for the children were adequate. By the mother’s admission, she would neither gain nor lose financially by the move. The father objected to the move because his visitation rights would suffer and because of the mother’s relations with a boyfriend in California. The mother admitted that her move was influenced by the moving of her boyfriend from Illinois to California. In deciding that the mother should be permitted to remove the children to California, the trial court utilized the “best interests of the children” standard. The court in Burgham used the following quotation from Tandy v. Tandy (1976), 42 Ill. App. 3d 87, 90, 355 N.E.2d 585, where a mother had been granted the right to remove a minor child to California upon a showing of improved health for herself and the child and the only detriment to the father was increased difficulty of visitation:

“ ‘In two recent cases this court has held that where one of the parents has been awarded custody of the parties’ child and there is no showing that the award was against the child’s best interests, a court should not oppose removal of the child from Illinois where the parent granted custody has moved or desires to move to another jurisdiction unless there is a specific showing that the move would be against the child’s best interests. (Garland v. Garland [(1974)], 19 Ill. App. 3d 951, 312 N.E.2d 811; Spencer v. Spencer [(1971)], 132 Ill. App. 2d 740, 270 N.E.2d 72.) The holdings in these cases reflect that it is generally in a child’s best interest to remain with the parent in whose custody the court has determined to place it.’ 42 Ill. App. 3d 87, 90, 355 N.E.2d 585, 587.” In re Marriage of Burgham [(1980)], 86 Ill. App. 3d 341, 345, 408 N.E.2d 37, 40.

The court in Burgham noted that the above-quoted language had been approved in Gallagher v. Gallagher (1978), 60 Ill. App. 3d 26, 376 N.E.2d 279, and Gray v. Gray (1978), 57 Ill. App. 3d 1, 372 N.E.2d 909. In the Gray case, the trial court had denied permission to remove a minor child to California, where the mother had obtained employment. The appellate court reversed, although the child had expressed a desire to remain in Chicago and the father’s visitation rights would be impaired. We believe the following from In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 345-46, 408 N.E.2d 37, 40, as it viewed the Gray case, to be an accurate statement of the law:

“We agree with the position of the Gray court that the best interests of a child subject to a custody decree are usually served by leaving the child with the existing custodial parent. Language in Tandy, Garland, and Spencer all ties the desires of a proper custodial parent to the best interests of the child indicating that permitting the spouse to remove the child may indirectly benefit the child by enabling that spouse to remain as custodian. It also seems that, other things being equal, granting such a request would likely indirectly benefit the child by making the custodian a happier, better adjusted parent than would be the case if the custodian’s freedom of movement was more restrained.

After considering the foregoing precedent, we deem the following to be the proper rule for a trial court to follow in ruling on a petition of a custodial spouse to remove a child from the State. As stated in Gallagher, Quirin, and Garland, the petitioning spouse has the burden of proof. However, a prima facie showing is made when a proper custodian states a desire to remove, shows a sensible reason for the move, and makes at least a superficial showing that the move is consistent with the child’s best interests. As a child often receives little, if any, demonstrable benefit from moving, direct benefit need not be shown. A different rule would unnecessarily tie many custodial spouses to this State. As proof that the child would not be harmed by the move involves proof of a negative, the petitioning spouse need not negate all possibilities of harm to the child. An objecting party could, of course, introduce evidence of specific damage likely to be incurred by the child. If the noncustodial spouse has rights of visitation, the trial court must give consideration to these rights and, with rare exceptions, should not allow removal if it would prevent reasonable visitation by the noncustodial spouse. The trial court must then weigh all of these items of evidence in arriving at its conclusion.”

The case under consideration is very close on its facts to Garland v. Garland (1974), 19 Ill. App. 3d 951, 312 N.E.2d 811. There the mother-custodian was a teacher at Northwestern, as was her fiance. Her fiance obtained a position in Oxford, Mississippi, and the mother was assured that she also could get employment there. The two planned to move to Oxford and to marry when they got there. The mother sought the right to remove her two minor children. At the hearing the father called as a witness a psychiatrist who gave testimony strongly favorable to the father. In affirming an order permitting removal, the court stated that “although [the psychiatrist had] testified that the separation of the children from the father would be more traumatic than to most children because of their apparent closeness, we believe that the evidence indicates both were good parents and, under such circumstances, a separation from either would be traumatic.” Garland v. Garland (1974), 19 Ill. App. 3d 951, 956, 312 N.E.2d 811, 815.

The facts and the result of the Garland case set the tone for our result here. Furthermore, all of the cases cited above strongly indicate that the right to remove should be granted in this case. The rule to be followed in ruling on a petition to remove pursuant to section 609, as set forth in the Burgham case, is a reasonable and proper one. In testing the facts of this case against the rule, we can only conclude that the finding of the trial court was against the manifest weight of the evidence and that the best interests of Matt will be served by permitting his removal to Yuma with his mother. The mother, a registered nurse with an M.S. degree in cardiovascular nursing and a .practicum in administration, testified to what she believed to be an advancement of her career, although the financial improvement does not appear to be significant. Her position in Yuma would be as a teacher in a junior college. Her two sons, who had a strong attachment to each other, would remain together. Health conditions for her son, Bernie, afflicted with asthma, would improve, although evidence of this may be regarded as largely inferred. The mother had been dating a physician in Yuma with some talk, but no present plans, of marriage. Although the trial court termed the move to Yuma as “neutral” with regard to Matt’s best interests, we must respectfully disagree. We also note that the only detriment the father managed to establish was the diminution of visitation with Matt, a matter of importance, certainly, but, as we have noted, not controlling.

The father has placed reliance upon the case of Quirin v. Quirin (1977), 50 Ill. App. 3d 785, 365 N.E.2d 226, decided by this court. In Quirin we reversed the decision of the trial court to permit removal of minor children to Arkansas. We believe that upon its facts the Quirin case was properly decided and would be decided in the same manner today. It is distinguished by facts that established a decided detriment to the children if removal had been permitted.

We would comment that the attachment of the father to the son and the son to the father, well fixed as it is, will probably not be diminished. Although visitation will be more difficult, it is not impossible. To fix and determine the rights of visitation under the new circumstances, this case must be remanded to the trial court. Accordingly, the order of the trial court is reversed and the cause remanded with directions to enter an order granting petitioner the right to remove Matt to Yuma, Arizona, and to make provision for visitation by the father.

Reversed and remanded with directions.

EARNS, J., concurs.