2017 IL App (2d) 170355 No. 2-17-0355 Opinion filed October 13, 2017 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re PARENTAGE OF P.D., ) Appeal from the Circuit Court a Minor, ) of Kane County. ) v. ) No. 14-F-0267 ) ) Honorable (Jack Alley, Petitioner-Appellee, v. ) Jack G. Dalton, Joan Dufelmeier, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion Justice Jorgensen concurred in the judgment and opinion. Justice Hutchinson specially concurred in the judgment, with opinion.
OPINION
¶1 Following an April 2017 hearing, the trial court denied respondent Joan Dufelmeier’s
request to relocate to New Jersey with her and petitioner John Alley’s minor child. Joan appeals,
arguing that the court’s decision was against the manifest weight of the evidence. Joan also
argues that the trial court erred in ruling on the petition without hearing closing arguments. We
affirm. 1
¶2 I. BACKGROUND
1 This disposition is filed 1 day after the 150-day term mandated by Illinois Supreme
Court Rule 311(a)(5) (eff. Feb. 26, 2010) due to temporary internet inaccessibility. 2017 IL App (2d) 170355
¶3 Joan and John (“Jack”) have one child, P.D., born September 2, 2012. Joan and Jack
were never married. On May 16, 2013, Jack filed a Petition to Establish Parentage, for Joint
Custody, Parenting Time, and Other Relief. A Judgment for Parentage and Custody was entered
on September 20, 2013. The judgment incorporated by reference the parties’ Custody and
Parenting Agreement and awarded Joan and Jack joint care, custody, control and education of
P.D. Joan is the residential custodian.
¶4 In February 2017, Joan filed a petition under section 609.2 of the Illinois Marriage and
Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/609.2 (West Supp. 2015)), seeking to
remove P.D. from Illinois. In her petition, Joan alleged, inter alia, (1) she is the primary
caretaker of P.D.; (2) she and Jack share joint decision-making regarding the major decisions
relating to P.D.; (3) in 2015, she married her husband (Brian); (4) Brian is required to relocate to
the New York City area to execute new employment duties; (5) she is employed by a company
headquartered in New York City, which will allow her to maintain her employment; (6) she and
Brian plan to move to Short Hills, New Jersey, a suburb 20 miles outside of New York City; and
(7) the removal will enhance the quality of both her and P.D.’s life.
¶5 Jack filed an objection to relocation, and, in April 2017, a hearing was held on Joan’s
petition. The court heard testimony from the Chief Executive Officer (CEO) of Brian’s
employer, P.D.’s guardian ad litem (GAL), Joan, Jack, Brian, and Jack’s parents and live-in
girlfriend. In addition, exhibits were admitted into evidence, including email communications
between Joan and Jack, the GAL’s written report, Joan’s suggested revision to the parenting
schedule proposed by the GAL, an agreed order modifying the parties’ parenting and custody
agreement with respect to Jack’s parenting time, and SEC documents regarding Brian’s
employer and the terms of Brian’s employment agreement. Highlights of the testimony and
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evidence are broadly summarized here, while facts with specific pertinence to a determination of
P.D.’s best interests are discussed more fully in the Analysis section.
¶6 One year prior to filing the instant petition, Joan filed a petition to relocate P.D. to
California, where Brian had started an internet business and resided at the time. In a preliminary
report, the GAL recommended that the petition be denied stating his concern that allowing Joan
to move to California would “permit her to continue treating Jack as an outsider despite the fact
that he is P.D.’s father.” He was also concerned that Joan had not made a reasonable “good faith
effort” to establish a schedule of parenting time for Jack and that travel between Illinois and
California would have a detrimental impact on P.D., who was then three and one half years old.
Joan voluntarily dismissed the petition, however, when Brian began negotiations to sell his
company to his current employer, Function(x), an internet social publisher headquartered in New
York City.
¶7 At the time the instant petition for removal was filed, Brian worked as Chief Operating
Officer (COO) for Function(x) and resided with Joan and P.D. in Joan’s house in Elgin, Illinois.
His negotiated contract with Function(x) states “we anticipate that you will be based in our
Elgin, IL, office but will travel to and work from our New York City Office as reasonably
requested.” The agreement includes compensation for the travel to and from New York City.
Brian earns a base salary of $250,000, with substantial bonus provisions that are contingent upon
the company’s financial performance.
¶8 Brian testified at trial that he resides “half of the time” in Elgin and the other half in New
York and sometimes is in New York for a full week at a time. Being away from Elgin impairs
his ability to assist Joan and participate in P.D.’s life. He believes his COO duties require him to
be in the New York City office full time, although he has successfully performed those duties to
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date while residing in Elgin. He is concerned he will lose his job if he does not move. The CEO
of Function(x) testified that due to expansion of the company, he now considers it a requirement
of Brian’s COO position that he relocate to New York City. He did not say that Brian would be
fired if he did not relocate.
¶9 Joan currently is an account specialist in the food service sector of a market research
company, earning approximately $50,000 per year. The company is headquartered in Fort
Washington, New York, and has an office in New York City. She is confident she will be able to
find equivalent employment if the removal is allowed.
¶ 10 Joan feels it is in P.D.’s best interest to relocate to New Jersey because it is important to
keep the family together and she is the primary caregiver. She also believes the move will
enhance P.D.’s quality of life because Short Hills, New Jersey, is an affluent, “family friendly”
area, with “top notch” schools. The specific house they are looking at is “nicer” and “bigger”
but still has “the yard P.D. enjoys playing in.” She and Brian chose a suburban environment
because that is what P.D. is used to and they “wanted to keep it a stable transition for him.”
¶ 11 Jack lives in St. Charles, Illinois, and works as a car salesman, earning in the vicinity of
$100,000 per year. He currently has parenting time with P.D. each week from Tuesday
afternoon overnight to Wednesday morning and alternating weekends from Friday evening to
Sunday evening. The longest extended period of time he goes without seeing P.D. is six days.
He is concerned that his relationship with P.D. could be damaged if he does not see him with the
same frequency as he does now. He testified that it is not in P.D.’s best interest to be relocated
to New Jersey and noted in particular that all of P.D.’s extended family lives in Illinois.
¶ 12 The GAL testified that he recommended the petition for removal to New Jersey be
allowed because the circumstances that persuaded him to recommend denying the prior petition
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had changed. Although he remained concerned about Joan’s attitude toward Jack,
communication between them had improved. Additionally, the distance P.D. would need to
travel is considerably less. He acknowledged that the relocation would have a “significant
impact upon ** [Jack’s] relationship with his son,” but also observed that “the business
opportunity for Brian is an incredible one for him, and as a result it’s an incredible opportunity
for the family, and that P.D. will benefit as well.”
¶ 13 In his report, the GAL proposed a parenting schedule that would give Jack approximately
the same number of days with P.D. as he currently enjoys, with 60 days consolidated in a single
period during the summer and an additional 29 days distributed among holiday school breaks.
After the GAL submitted the proposal, Joan submitted a “suggested revision,” which provided
that Joan would have P.D. in Illinois for four of the summer weekends, added seven additional
parenting days for Jack in the spring, and required three of the other visitations to occur in New
Jersey.
¶ 14 II. ANALYSIS
¶ 15 Prior to 2016, section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act)
(750 ILCS 5/609.2 (West Supp. 2016)) allowed a trial court to grant a custodial parent
permission to remove a minor child from Illinois when it is in the child’s best interests. The
parent seeking removal has the burden of proving, by a preponderance of the evidence, that
removal would be in the child’s best interest. See id.; In re Rogan M., 2014 IL App (1st)
141214, ¶ 8.
¶ 16 In applying section 609, 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.” In re
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Marriage of Eckert, 119 Ill. 2d 316, 326 (1988). The Eckert court identified certain factors that
might aid the trial court in determining the best interests of the child, including (1) the likelihood
that the proposed move will enhance the general quality of life for both the custodial parent and
the child; (2) the custodial parent’s motives for seeking removal, to determine whether the
proposed move is a ruse designed to frustrate or defeat the noncustodial parent’s visitation;
(3) the noncustodial parent’s motives in resisting removal; (4) the effect removal will have on the
noncustodial parent’s visitation rights, because it is in the best interests of a child to have a
healthy and close relationship with both parents, as well as other family members; and
(5) whether a reasonable visitation schedule can be worked out. In re Marriage of
Collingbourne, 204 Ill. 2d 498, 522-23 (2003) (citing, Eckert, 119 Ill. 2d at 326-27). In
Collingbourne, the supreme court observed that the purpose of the Eckert factors is not to
establish a test in which the parent seeking removal must meet every prong; rather, the Eckert
factors are to be considered and balanced by the trial court and no one factor is controlling. Id. at
523.
¶ 17 In 2016, the General Assembly repealed section 609 of the Dissolution Act and replaced
it with section 609.2 of the Dissolution Act. (750 ILCS 5/609.2 (West Supp. 2016)). Section
609.2 now provides the procedure by which a parent may seek to “relocate” with a child. The
legislature also listed eleven factors a trial court must consider in determining the child’s best
interests:
“(1) the circumstances and reasons for the intended relocation;
(2) the reasons, if any, why a parent is objecting to the intended relocation;
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(3) the history and quality of each parent’s relationship with the child and
specifically whether a parent has substantially failed or refused to exercise the parental
responsibilities allocated to him or her under the parenting plan or allocation judgment;
(4) the educational opportunities for the child at the existing location and at the
proposed new location;
(5) the presence or absence of extended family at the existing location and at the
(6) the anticipated impact of the relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of parental
responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child’s maturity and ability to
express reasoned and independent preferences as to relocation;
(9) possible arrangements for the exercise of parental responsibilities appropriate
to the parents’ resources and circumstances and the developmental level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a
parent’s relocation; and
(11) any other relevant factors bearing on the child’s best interests.”
750 ILCS 5/609.2(g) (West Supp. 2016). We are unaware of a prior appellate opinion reviewing
a trial court’s application of the section 609.2(g) factors for determining whether relocation is in
the child’s best interests.
¶ 18 A trial court’s determination regarding the child’s best interests will not be reversed on
appeal unless it is against the manifest weight of the evidence and it appears that a manifest
injustice has occurred. Eckert, 119 Ill. 2d at 328. The trial court’s decision is against the
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manifest weight of the evidence only if the evidence “clearly” calls for a conclusion opposite to
that reached by the trial court or only if the factual findings on which the decision depends are
clearly, plainly, and indisputably erroneous. Wakeland v. City of Urbana, 333 Ill.App.3d 1131,
1139 (2002). “There is a strong and compelling presumption in favor of the result reached by the
trial court in a removal case.” In re Marriage of Dorfman, 2011 IL App (3d) 110099, ¶ 52
(citing Eckert, 119 Ill. 2d at 330). Reviewing courts grant great deference to the trial court’s
removal decision, as the trial court is in the best position to observe the parties and assess their
personalities and capabilities. Dorfman, 2011 IL App (3d) 110099, ¶ 46. See also In re
Marriage of Pfeiffer, 237 Ill. App. 3d 510, 516 (1992) (the trial court is in the best position to
make fact-intensive determinations “as it has the opportunity hear the evidence while viewing
the witnesses and their demeanor”).
¶ 19 In its order denying the petition, the trial court specifically mentioned the section
609.2(g) factors and weighed each one. “It is not the function of this court to reweigh the
evidence or assess the credibility of testimony and set aside the trial court's determination merely
because a different conclusion could have been drawn from the evidence.” In re Marriage of
Pfeiffer, 237 Ill. App. 3d 510, 513 (1992). Our review reveals that the trial court’s judgment not
to allow the removal of P.D. to New Jersey is not against the manifest weight of the evidence.
¶ 20 The first factor to be considered under section 609.2(g) is the circumstances and reasons
for the intended relocation. Joan asserts that her husband, Brian, will be able to take advantage
of his job opportunity as COO of Function(x) only if he relocates from Elgin to the New York
City area and that he will, in fact, lose his job if he does not move. She argues that if she and
P.D. relocate with Brian, maintaining the family unit would be less stressful; it would be easier
for Brian and P.D. to strengthen their already good relationship; and, due to an increase in
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income, the family unit would receive such benefits as “a nicer home, a more affluent
neighborhood, the ability to participate in extracurricular activities and other activities and
vacations, and a higher standard of living.”
¶ 21 The evidence accrued at trial with respect to the first factor does not unequivocally
support Joan’s assertions, as she contends. First, Brian’s employer testified that he considered it
a requirement of Brian’s COO position that he relocate to New York City but stopped short of
stating that Brian would be fired if he did not relocate. Additionally, the contract Brian
negotiated with Function(x) upon his promotion from CRO to COO and entered into on February
1, 2017, “anticipates” that he will be based in Elgin, and by all accounts, including Brian’s own,
he has successfully performed his COO duties while residing in Elgin, albeit with frequent and
lengthy commutes to New York City. Brian testified that it has not been indicated to him that his
job is in jeopardy. With respect to Brian’s income, the firm’s bonus structure indicates that he
could earn considerably more than his $250,000 yearly salary, but whether he will actually do so
is a matter of speculation. His contract provides that Brian could be terminated without cause, in
which case he would be entitled to three month’s salary. Additionally, with respect to Joan’s
current house, where she, Brian and P.D. reside, the GAL testified that “although modest,” it is
“very nice.”
¶ 22 At the same time, the evidence showed that P.D. and Brian have a close relationship, that
the family dynamic has included Brian’s involvement in P.D.’s daily care, and that the
considerable time Brian must be in New York takes a toll not only on their relationship, but also
on the family unit’s stability.
¶ 23 The trial court concluded, however, that even if the first factor were to favor allowing
relocation, it is counter balanced by the second factor: the reasons why Jack is objecting to the
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intended relocation. Jack is concerned that his close father-son relationship with P.D. will suffer
if he cannot be with P.D. on a frequent and regular basis. He is also concerned about the impact
of the relocation on P.D.’s relationship with Jack’s parents, who are active in P.D.’s life, and his
other grandparents and extended family. All three sets of parents—Jack’s, Joan’s and Brian’s—
as well as other family members live in the vicinity of Elgin. No relatives live in the New York
City or New Jersey vicinity. Accordingly, Jack does not consider this relocation proposal to be
an option.
¶ 24 Joan argues that Jack’s failure to investigate the relocation destination—the school, home
and community Joan wishes to move to with P.D.—indicates that he may not have P.D.’s best
interests at heart. She further argues that Jack “does not particularly enjoy or excel at his job” as
a car salesman. Surmising that neither Jack nor his parents “are tied to Illinois,” Joan speculates
that with investigation, Jack “could have found a job he would have enjoyed more in the New
Jersey or New York City area.” The evidence, however, does not support these assertions. After
being temporarily laid off, Jack was rehired by his employer and, due to his performance at the
franchise, was able to negotiate a work schedule that coincides with his parenting schedule. He
is proud of negotiating this schedule, and stated that, despite being off every other Saturday, he
earns six figures annually. (According to the GAL’s report, Jack earned in excess of $100,000
annually prior to his lay off.)
¶ 25 Third, the trial court considered the history and quality of each parent’s relationship with
P.D. and specifically whether either Joan or Jack has substantially failed or refused to exercise
the parental responsibilities allocated to her or him under the parenting plan or allocation
judgment. The court agreed with the GAL that this factor was “neutral.”
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¶ 26 The evidence supports this assessment. While Joan is the custodial parent and has served
as the primary caretaker, Jack has always sought to be involved, and he has always sought
additional time with P.D. and currently fully utilizes his parenting time. The court’s conclusion
that this factor favors neither party was not against the manifest weight of the evidence.
¶ 27 Joan points out that Jack entered into an agreed order eliminating his Thursday parenting
time and that he chooses alternative weekends for parenting time. The Gal testified that the
Thursday morning parenting time became unworkable after the parties entered into the original
visitation agreement because Joan moved further away. As to alternating weekends of parenting,
the GAL noted that, to his knowledge, Saturday “would certainly be the busiest day to be a car
dealer.” We do not agree with Joan that this factor favors relocation.
¶ 28 The fourth section 609.2(g) factor is the educational opportunities for P.D. at the existing
location and at the proposed new location. He trial court concluded that it was not provided with
an evidentiary basis to decide this factor. The evidence presented on this factor does not clearly
call for a conclusion opposite to that reached by the trial court.
¶ 29 Joan argues that the GAL “opined at trial and in his [r]eport that the educational
opportunities for P.D. in the New Jersey area where Joan and Brian intend to relocate are far
superior to those in the school district where Joan currently resides.” The GAL also stated in his
report that the New Jersey schools “far exceed[ed]” any private school P.D. might attend in the
Elgin area. Upon examination by the court, however, the GAL conceded that he could not recall
comparing the parochial school currently attended by P.D. with New Jersey schools and had no
documentation to confirm how Elgin Academy, for example, would rank against the public
schools in New Jersey. Although Joan testified that P.D. would be attending public school in
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New Jersey, she acknowledged that she and Jack had not discussed where P.D. would go to
school next year if he stayed in Elgin.
¶ 30 Joan and Brian also testified as to the excellence of the New Jersey schools but identified
no basis for their beliefs other than presumed general knowledge (“we have all heard about the
schools”) and the representations of a New Jersey realtor. Joan’s comment that Jack “did not
even investigate the schools in Short Hills, New Jersey” is red herring. It is Joan’s burden to
prove, by a preponderance of the evidence, that removal would be in P.D.’s best interest. In re
Rogan M., 2014 IL App (1st) 141214, ¶ 8. Given that the trial court was presented with no
comparison of the New Jersey school Joan has picked out for P.D. with the Elgin school P.D.
currently attends, we cannot say that the court’s conclusion that it could not decide this factor
was against the manifest weight of the evidence.
¶ 31 The fifth factor is the presence or absence of extended family at the existing location and
at the proposed new location. The trial court found that this factor “overwhelmingly favors
denial of relocation.” The manifest weight of the evidence clearly supports the trial court’s
finding. P.D. has an extended network of family relationships in or near Elgin, including three
sets of grandparents (Jack’s, Joan’s and Brian’s), Jack’s sister, and cousins. Many of these
relationships involve significant contact with P.D., and the parties agreed that they are important
to his well-being. If relocation were allowed, his only family contacts would be with his mother
and step-father. We note that Joan avoids this factor altogether on appeal, although she did
indicate at trial that because her family and Brian’s family are both located in Illinois, she would
bring P.D. to Illinois from time to time for family events.
¶ 32 The sixth factor is the anticipated impact of the relocation on P.D. Joan argues in favor
of the GAL’s observation that because P.D. is young, relocation would not disrupt established
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friendships or involvement in sports, clubs, or other activities. The GAL also noted, however,
that Jack had advised him that P.D. enjoys his time at school and is making friendships with the
other children. At trial, Jack testified to the “overall harm” to P.D. of relocating at this age:
“P.D. does have friends. He knows all of his family members. He knows the difference between
Elgin, South Elgin and St. Charles. He is four and a half years old.” The GAL acknowledged
that relocation would mean “wrenching him away from a very good father” and that P.D. would
“certainly miss his father.” Ultimately, under examination by the court, the GAL agreed that
“saying P.D. is not yet of school age is really just saying it wouldn’t do as much damage to him
now as it might later to make this move.”
¶ 33 Joan takes issue with the trial court’s finding that P.D. would gain only “the possibility of
indirect benefits” from the relocation. She argues that “the direct benefits to the child *** would
include *** a bigger house with air conditioning, fantastic schools and educational opportunities,
low crime rates, the ability to participate in extracurricular activities, increased household
income, and a general increased quality of life.” Although the GAL agreed that the area where
they would be living in New Jersey “is comprised of larger and more expensive residences,” he
also noted that P.D.’s current home and neighborhood are “very nice,” and the finder of fact,
who lives in Elgin and is familiar with P.D.’s neighborhood, called it “lovely.” As explained
above, the educational opportunities were not shown to be greater in New Jersey. No evidence
was presented as to “the ability to participate in extracurricular activities.” Whether the
household income would increase is subject to unknowable future events. With respect to P.D.’s
“quality of life,” the GAL reported that “P.D. participates in activities with (Jack) and (Jack’s)
parents, who are members at Medina Country Club, and they enjoy activities there, whether it’s
golf or swimming or parties or what have you.” The trial court’s finding that Joan did not bear
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her burden of proving that the impact of moving on P.D. would be beneficial is not against the
manifest weight of the evidence.
¶ 34 Joan further contends that the court erred in not giving enough weight to the first factor
enunciated by the supreme court in Eckert, which Joan asserts is “the likelihood of enhancing the
general quality of life of the custodial parent.” In fact, the first Eckert factor directs the court to
“consider the proposed move in terms of likelihood for enhancing the general quality of life for
both the custodial parent and the [child].” (Emphases added.) Eckert, 119 Ill. 2d at 326-27.
The trial court was presented with a great deal of evidence suggesting that Joan’s general quality
of life was likely to be enhanced. The court chose to focus, however, on whether the general
quality of P.D.’s life was likely to be enhanced. We believe this was the correct approach given
the recent enactment of section 609.2(g), which omits the first Eckert factor, references only the
best interests of the child, and does not mention the custodial parent. See 750 ILCS 5/609.2(g)
(West Supp. 2016).
¶ 35 Joan asserts that “[t]he case law requires the [c]ourts to continue to consider *** the
‘trickle-down effect’ ” of benefits upon a family’s children. She cites no supporting authority for
this statement. The GAL also characterized the benefits P.D. would receive from the move as
“trickle-down benefits.” By definition, however, “trickle-down” benefits are indirect. See
https://www.merriam-webster.com/dictionary/trickle-down (“an effect caused gradually by
remote or indirect influences”). Moreover, whether—and to what degree—a trickle-down effect
will occur is a matter of speculation. We do not believe that “trickle-down benefits” are what the
Eckert court contemplated when it required courts to consider the “likelihood” for enhancing the
quality of life for the child as well as the custodial parent. Eckert, 119 Ill. 2d at 326-27.
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¶ 36 Finally, we note that when amending a statute, the legislature is presumed to have acted
with knowledge of the prevailing case law. U.S. Bank Tr. Nat. Ass’n v. Junior, 2016 IL App
(1st) 152109, ¶ 27 (citing Morris v. William L. Dawson Nursing Center, Inc., 187 Ill.2d 494, 499
(1999). A subsequent amendment to a statute may be an appropriate source for discerning
legislative intent. (Internal quotation marks omitted.) In re Skidmore, 2011 IL App (2d) 100730,
¶ 28. The legislature presumably had knowledge of the supreme court’s decisions in Eckert and
Collingbourne and yet chose not to include the first Eckert factor in the new statutory directives
for determining a child’s best interests. The legislature evidently intended to emphasize the
child’s best interests over those of the custodial parent. Given the new statutory directives, we
find the reasoning of Eckert and Collingbourne and progeny, to the extent it requires weighing
the likelihood that the move will enhance the custodial parent’s quality of life, is unhelpful in
evaluating the trial court’s best-interest determination in the case before us. Cf. In re G.L.,
20172017 IL App (1st) 16317180, ¶ 32 (similar finding with respect to section 609.2’s new
statutory regulations on parental relocation).
¶ 37 The seventh factor to be considered in determining the child’s best interests is whether
the court will be able to fashion a reasonable allocation of parental responsibilities between all
parents if the relocation occurs. Citing Joan’s and Brian’s apparent willingness to provide Jack
with parenting time, as well as their financial resources, the GAL’s report simply stated his belief
that “a schedule can be formulated that would be reasonable under the circumstances.” The trial
court, however, observed that parenting time was not the only aspect of parental responsibilities
to be considered, noting that the parties currently have a “joint custody order” that provides for
Jack’s participation “in all the major decisions.” See Black’s Law Dictionary 413 (8th ed. 2004)
(joint custody is “most often defined as meaning *** that both parents will share in the decisions
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concerning the child’s care, education, religion, medical treatment and general welfare” (Internal
quotation marks omitted.)).
¶ 38 The trial court expressed its concern that the relocation would adversely affect Jack’s
ability to fulfill his parental responsibilities, given the historically poor communication between
the parties. The parties and the GAL testified that both parents bear responsibility for the
communication problem and also that their relationship was improving, partly due to Brian’s
efforts as a “buffer” between them.
¶ 39 As for parenting time, Joan rejected the GAL’s proposed schedule, which would place
P.D. with Jack for 60 straight days in the summer, and Jack rejected Joan’s alternative schedule,
which would include his traveling to New Jersey multiple times per year. The issue of who
would accompany P.D. on flights between New Jersey and Illinois was not resolved, nor was the
question of how transportation and lodging costs would be paid. Joan indicated that she and
Brian had the financial resources to contribute to P.D.’s travel costs, and they “might pay for
some of [Jack’s transportation],” but also testified that the travel burden should be on Jack: “Jack
is a grown adult. He can come visit his son, if it’s important enough to him.”
¶ 40 Joan acknowledges that the move to New Jersey would diminish Jack’s frequent contact
with P.D. but argues that the schedules proposed by the GAL and Joan would allow Jack a
similar amount of time with P.D. Jack testified about things he would not be able to do with
P.D. if he lived in New Jersey, including “living in a suitable nearby household” and discovering
“if he had changed his favorite color from green to red or back to green again.” In short, he
would not “be able to have any normal visibility whatsoever” in P.D.’s life if either proposed
schedule were approved. The trial court observed that the parenting time Jack currently enjoys is
aligned with his work schedule and maximizes the amount of parenting time he has when he is
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not working. The court concluded that the quality of Jack’s current parenting time would not be
met by the schedule proposed by the GAL or by Joan.
¶ 41 With regard to factor eight—the wishes of the child, taking into account the child’s
maturity and ability to express reasoned and independent preferences as to relocation—no
evidence was presented. Given P.D.’s age, the trial court stated it was uncertain it would give
weight to this factor even if evidence were presented.
¶ 42 Factor nine is “possible arrangements for the exercise of parental responsibilities
appropriate to the parents’ resources and circumstances and the developmental level of the
child.” The GAL’s report stated with respect to this factor: “Joan and her [h]usband appear to
have substantial financial resources and from this fact could bear the cost of transportation in
furtherance of a schedule of parenting time for Jack.” The trial court noted that in her testimony
at trial, Joan did not offer to pay the costs, including travel, hotels and meals, Jack would incur
under her proposal that would require him to spend part of his parenting time in New Jersey.
¶ 43 Joan argues that the court’s analysis is “improper,” stating the “question is, given the
parents’ resources, could the costs of the proposed parenting schedule be reasonably afforded by
the parties?” The statute, however, contemplates “possible arrangements appropriate to the
parents’ resources and circumstances.” According to Joan, “Brian’s income at worst would be
around $450,000.00 annually, [and] Joan would probably be able to keep her job in New York or
find comparable employment.” Jack, on the other hand, “is employed and earned $100,000.00 in
the past as a car salesman.” Given the disparity in the parents’ resources, we believe the court
properly considered Joan’s reluctance to assist Jack in determining whether arrangements for
exercising his parental responsibilities in New Jersey were “possible” under this factor. During
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his testimony, the GAL agreed with the court that the fact that Joan and Brian can afford to pay
to facilitate Jack’s parenting time does “not necessarily” resolve who factor nine favors.
¶ 44 The trial court also considered P.D.’s developmental level. The proposed schedules
would entail either 16 or 20 trips between Illinois and New Jersey, which, the court calculated,
could require four-and-a-half-year-old P.D. to spend half a day in transportation for close to three
weeks per year. Joan does not specifically address the travel burden or P.D.’s developmental
level on appeal.
¶ 45 The tenth factor is “minimization of the impairment to a parent-child relationship caused
by a parent’s relocation.” In its examination of the GAL, the trial court recited the GAL’s
comment in his “Preliminary Oral Report” submitted in relation to Joan’s petition to relocate to
California:
“Of concern to me is the fact that as long as I have been involved in this matter
Joan has shown absolutely no patience for Jack’s involvement with the child nor has she,
in my opinion, made even the slightest effort to try and open lines of communication or
to treat either Jack or his family as the parents [sic] or grandparents of P.D. I do not
believe that this necessarily means that Joan has an improper motive in wanting to move
to California, but my larger concern is that if she is allowed to move to California is her
behavior going to continue in such a distant jurisdiction to the point where she will
attempt to cut Jack out of [P.D.’s] life?”
¶ 46 In response to the court’s inquiry as to whether this was still a concern, the GAL stated
that he did not think Joan would try to cut Jack out of P.D.’s life if they relocated to New Jersey,
since Brian’s involvement had led to a “softening of the relationship of the parties.” He also
acknowledged that his report and testimony in the present relocation proceeding contained
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multiple references to Joan’s attitude toward Jack, including; “I do wish at times from my
observation that [Joan] showed [Jack] more respect as a father,” and Joan “basically treats Jack
as something of an intrusion upon the family dynamic that she would prefer.” In recommending
that the petition be allowed, the GAL stated “I remain concerned, as I have during my entire
involvement in this matter, with the attitude of Joan. If she does not show a willingness to
facilitate the relationship between Jack and [P.D.,] [c]ourt [o]rders will need to enter rectifying
the situation.” The trial court concluded that because Joan “does not show a willingness to
facilitate a positive relationship between father and son,” the tenth factor “strongly favors
denial.”
¶ 47 No evidence was presented on the eleventh factor, “any other relevant factors bearing on
the child’s best interests.” Joan posits in her brief that this might be the appropriate place to
consider the impact of the move on Joan’s life. See Eckert, 119 Ill. 2d at 326-27 (the “likelihood
for enhancing the general quality of life for both the custodial parent and the [child]).” As
explained above, we believe the trial court properly placed consideration of P.D.’s best interests
above the likely enhancement to Joan’s general quality of life as a result of relocating to New
¶ 48 As a final note, we acknowledge the caselaw cited by the parties in support of their
positions on the various section 609.2(g) factors. Although the cases were all decided before the
enactment of section 609.2(g), they are not irrelevant to some of the factors. However, as the
supreme court observed, a determination of the best interests of the child “must be made on a
case-by-case basis, depending, to a great extent, upon the circumstances of each case.” Eckert,
119 Ill. 2d at 326. The parties’ readily distinguish the circumstances of each other’s cases from
the circumstances of the case before us. Accordingly, we find that the cited cases provide
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negligible assistance in reviewing the trial court’s application of the section 609(g) factors to the
circumstances of this case.
¶ 49 Having analyzed each factor individually, we note that when we view the totality of the
circumstances we reach the same conclusion. In determining whether to grant or deny a petition
for removal, some factors may inevitably weigh more heavily than others. The final decision in
a removal case ought not be based on which party won the most factors. To the contrary, the
legislative enumeration of factors does not limit the trial court to a check list tally, nor preclude
the trial court from considering all of the circumstances to arrive at a reasonable result. The
points raised in the special concurrence give context and clarity to the application of the statutory
factors and remind us that the trial court should consider the totality of the circumstances in
exercising its discretion. Based on the foregoing evidence and trial court findings, we conclude
that the denial of the petition to remove P.D. to New Jersey is not against the manifest weight of
the evidence.
¶ 50 We turn to Joan’s second argument, that the trial court committed reversible error by not
allowing her to present closing arguments. Joan has forfeited this argument because she did not
request the opportunity to present a closing argument, nor did she object when the court ruled
without hearing arguments. See In re Marriage of Sharp, 369 Ill. App. 3d 271, 276 (2006) (a
matter not properly presented to the trial court by the appellant will not be considered on appeal).
The trial transcript shows that at the end of the evidence, the trial court asked, “Are we all
finished?” Joan’s counsel responded, “Yes, sir.” After the court set forth its reasoning and
ruling, which consumes more than fifteen pages of transcript, counsel merely said, “Judge, I will
prepare an order” and then requested Rule 304(a) language. Any perceived error in the court’s
procedure was not brought to the court’s attention.
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¶ 51 Forfeiture aside, we do not believe the court abused its discretion in not hearing
argument. The case was tried without a jury in a bench trial. “Oral argument in a civil
proceeding tried, as here, by the court without a jury is a privilege, not a right, and is accorded to
the parties by the court in its discretion.” Parkway Bank & Trust Co. v. Meseljevic, 406
Ill.App.3d 435, 441 (2010) (citing Korbelki v. Staschke, 232 Ill.App.3d 114, 118-19 (1992)).
The bench trial lasted approximately 8 hours and involved relatively uncomplicated subject
matter. Moreover, the report of proceedings reflects that the trial judge took extensive notes.
See Korbelki, 232 Ill.App.3d at 119 (finding no abuse of discretion in refusing to allow the
plaintiff to make a closing argument where the case involved a short trial with uncomplicated
facts and the judge took extensive notes). The trial court did not abuse its discretion in declining
to allow closing arguments.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the judgment of the Kane County circuit court.
¶ 54 Affirmed.
¶ 55 JUSTICE HUTCHINSON, specially concurring.
¶ 56 I agree with the majority’s analysis and conclusion in this case. I write separately only to
comment on the larger issues created by relocation of a child after a marriage or a relationship
ends. As a trial court judge, relocation decisions were some of the most difficult decisions I had
to make. As judges, we have guidance from the supreme court by way of the Eckert factors (see
In re Marriage of Eckert, 119 Ill. 2d 316, 326 (1988)), and the legislature has provided new
additional guidance in section 609.2(g) of the Marriage Act (750 ILCS 5/609.2(g) (West 2016));
however, the ultimate responsibility for the best interests of a child rests with his or her parents.
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¶ 57 When a relationship creates a child, and then that relationship ends, it is important that
both parents continue to participate to the fullest in the child’s life. See Eckert, 119 Ill. 2d at 327;
I re Marriage of Repond, 349 Ill. App. 3d 910, 919 (2004); Keefer v. Keefer, 107 Ill. App. 2d
74, 78 (1969). While that relationship is often a marriage, a child’s best interests are no less
important because his or her parents never married. In either case, it is reasonable and expected
the parents will move on in their own personal lives. My primary concern however is that they
not pursue their individual happiness at the expense of the child’s relationship with the
noncustodial parent.
¶ 58 The prospect of relocation of families looms large in today’s employment market, and the
odds of a parent seeking relocation are doubled when a new spouse enters the picture. Simply
put, this is an issue that needs to be discussed, carefully considered, and understood prior to the
new marriage. I recognize that the happiness of the custodial parent who requests relocation is a
consideration here; it is certainly a factor in the balance, even if it is not a listed factor in Eckert
or in section 609.2(g). However, that happiness pales in comparison to the best interests of the
child when the child is separated by distance from a parent who has been involved in the child’s
day-to-day activities and the extended family members who have also nurtured the child since
birth.
¶ 59 Here, “a nicer home” in “a more affluent neighborhood” with additional privileges fueled
by an impressive family income is noteworthy, but there is a dark side to these material issues. If
relocation is allowed, P.D. will interact with his father less personally and less often, travel a
long distance to have time with his father, and will be isolated from most of his extended family,
especially those family members on his father’s side. Electronic communication is helpful in
these situations, but a 4-year-old child has little patience for or understanding of the technology.
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Adults are better suited to using electronic communication with each other, even though doing so
due to the geographic separation of the newly married couple is an inconvenience for the couple.
¶ 60 Finally, when the parent requesting relocation has a history of placing roadblocks,
however slight, in the way of the relationship between the child and the noncustodial parent,
distance between the noncustodial parent and the child takes on an added significance. School
activities, extracurricular participation, and important milestones in the child’s life often cannot
be attended by the parent who remains behind; his or her involvement comes through the eyes
and ears of third parties, if it comes at all. But the distance itself, as an additional and
intentionally placed hurdle, is simply unacceptable. As related by the GAL and the trial court,
there is some evidence here that Joan sees Jack’s parenting time more of an annoyance than an
important and essential part of P.D.’s development. In addition, Joan wanted changes to the
GAL’s proposed parenting-time plan requiring Jack to remain in New Jersey for some visits
where he likely has no connections, would need hotel accommodations, and is not familiar with
child-appropriate activities in the area. Joan’s request was apparently just another roadblock
designed to alienate Jack from P.D.’s life. She offered no evidence to show that her request was
at all practical, or reasonable, or in P.D.’s best interests.
¶ 61 In a recent case, this court cautioned that a parent’s greater share of parenting time could
not be “transmogrif[ied]” into carte blanche to unilaterally change the children’s surnames,
particularly as a means of alienating them from their father. In re Marriage of Piegari, 2016 IL
App (2d) 160594, ¶ 9. Given the quality of the evidence presented, Joan appears to be asserting
a similar privilege—i.e., that her greater share of parenting time and increased wealth in her new
marriage entitles her to remove P.D. to New Jersey, away from P.D.’s father and family. The
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law does not recognize any such right. As the trial court correctly determined, the evidence
presented simply did not warrant P.D.’s removal.
¶ 62 With these observations in mind, I specially concur.
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