In re Marriage of Firkus

Appellate Court of Illinois

In re Marriage of Firkus

584 N.E.2d 1036, 223 Ill. App. 3d 94, 165 Ill. Dec. 602, 1991 Ill. App. LEXIS 2224

CourtAppellate Court of Illinois

DecidedDecember 30, 1991

DocketNo. 5-91-0147

StatusPublished

This text of 584 N.E.2d 1036 (In re Marriage of Firkus) 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 Firkus, 584 N.E.2d 1036, 223 Ill. App. 3d 94, 165 Ill. Dec. 602, 1991 Ill. App. LEXIS 2224 (Ill. Ct. App. 1991).

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Opinions

JUSTICE HOWERTON

delivered the opinion of the court:

Trudy Firkus, now Guerra, had been awarded custody of an only child in an earlier dissolution order and in this proceeding requested the circuit court’s permission to take the child to Florida. The circuit court directed a judgment against her at the close of her case in chief, ruling that there was insufficient proof that the move was in the child’s best interests. We affirm.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 609) permits a custodial parent to remove a child from the State whenever removal is in the best interests of the child and places the burden of proof “on the party seeking the removal.” Ill. Rev. Stat. 1989, ch. 40, par. 609.

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, said no bright-line test for determining the best interests of a child exists; rather, removal depends upon the facts and circumstances of each case. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) To aid the circuit court’s determination whether removal is in the child’s best interest, the court suggested consideration of the following factors: (1) the likelihood that the move will enhance the quality of life and general welfare of both the custodial parent and the child; (2) the custodial parent’s motive in seeking removal; (3) the motives of the noncustodial parent in resisting removal; (4) whether a realistic and reasonable visitation schedule can be reached if removal is allowed; and (5) if the move is to a distant jurisdiction, the harm to the child which may result. Eckert, 119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.

In this appeal, Guerra claims the circuit court erred by directing a judgment against her because she had made a prima facie case of removal inasmuch as she presented some evidence on every factor set out in Eckert. We hold that presenting some evidence on every factor set out in Eckert is not necessarily equivalent to making a prima facie case for removal.

The Eckert factors are not elements of a prima facie case that must be proven in order to avoid a directed judgment. Rather, they are merely suggestions, factors to be considered when determining whether removal serves the child’s best interests. Presenting some evidence on each Eckert factor, therefore, will not necessarily make a prima facie case for removal. A prima facie case for removal of a child from the State is made by proving that the move is in the child’s best interests.

Here, the circuit court ruled at the close of Guerra’s case that there had been an insufficient showing that the move was in the child’s best interests, and we cannot say that ruling was against the manifest weight of the evidence or that a manifest injustice has occurred. (See Eckert, 119 Ill. 2d at 330, 518 N.E.2d at 1046 (for this court’s standard of review).) Thus, we cannot reverse.

The circuit court is affirmed.

Affirmed.

HARRISON, J., concurs.

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JUSTICE HOWERTON

delivered the opinion of the court:

Trudy Firkus, now Guerra, had been awarded custody of an only child in an earlier dissolution order and in this proceeding requested the circuit court’s permission to take the child to Florida. The circuit court directed a judgment against her at the close of her case in chief, ruling that there was insufficient proof that the move was in the child’s best interests. We affirm.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 609) permits a custodial parent to remove a child from the State whenever removal is in the best interests of the child and places the burden of proof “on the party seeking the removal.” Ill. Rev. Stat. 1989, ch. 40, par. 609.

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, said no bright-line test for determining the best interests of a child exists; rather, removal depends upon the facts and circumstances of each case. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) To aid the circuit court’s determination whether removal is in the child’s best interest, the court suggested consideration of the following factors: (1) the likelihood that the move will enhance the quality of life and general welfare of both the custodial parent and the child; (2) the custodial parent’s motive in seeking removal; (3) the motives of the noncustodial parent in resisting removal; (4) whether a realistic and reasonable visitation schedule can be reached if removal is allowed; and (5) if the move is to a distant jurisdiction, the harm to the child which may result. Eckert, 119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.

In this appeal, Guerra claims the circuit court erred by directing a judgment against her because she had made a prima facie case of removal inasmuch as she presented some evidence on every factor set out in Eckert. We hold that presenting some evidence on every factor set out in Eckert is not necessarily equivalent to making a prima facie case for removal.

The Eckert factors are not elements of a prima facie case that must be proven in order to avoid a directed judgment. Rather, they are merely suggestions, factors to be considered when determining whether removal serves the child’s best interests. Presenting some evidence on each Eckert factor, therefore, will not necessarily make a prima facie case for removal. A prima facie case for removal of a child from the State is made by proving that the move is in the child’s best interests.

Here, the circuit court ruled at the close of Guerra’s case that there had been an insufficient showing that the move was in the child’s best interests, and we cannot say that ruling was against the manifest weight of the evidence or that a manifest injustice has occurred. (See Eckert, 119 Ill. 2d at 330, 518 N.E.2d at 1046 (for this court’s standard of review).) Thus, we cannot reverse.

The circuit court is affirmed.

Affirmed.

HARRISON, J., concurs.

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584 N.E.2d 1036, 223 Ill. App. 3d 94, 165 Ill. Dec. 602, 1991 Ill. App. LEXIS 2224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-firkus-illappct-1991.

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