Removing children from non-martial relationships

Prior to the enactment of the 2003 Parentage Act, there was a problem for non-custodial parents in cases where the parties were never married in attempts to prevent the removal of a child from the State of Illinois, during or after there had been an establishment of a parent/child relationship. The case of In Re the Parentage of RMF, 275 Ill. App. 3d 43, 655 N.E. 2d 1137 (2^nd Dist. 1995) involved the situation where the custodial parent was attempting to remove the minor child from the State of Illinois to the State of Arizona. The custodial parent had filed a petition to remove the minor child from the State pursuant to Section 609 of the Illinois Marriage and Dissolution of Marriage Act while at the same time moving for a Declaratory Judgment stating that Section 609 of the Illinois Marriage and Dissolution of Marriage Act does not apply to children born out of wedlock. The non-custodial parent was attempting to prevent the removal of the minor child pursuant to these petitions. The trial court granted the petitioner to remove the child from the State and declared that Section 609 of the Illinois Marriage and Dissolution of Marriage Act was applicable to situations involving children born out of wedlock.

On Appeal, the Appellate Court noted that the 1984 Parentage Act, which governed this case, contained no provisions dealing with removal actions brought on behalf of children from non-marital relationships nor did the 1984 Parentage Act require removal pursuant to Section 609 of the Illinois Marriage and Dissolution of Marriage Act.

The Appellate Court then went on to cite the factors for removal as stated by the Illinois Supreme Court in the case of In Re the Marriage of Eckert, 119 Ill. 2d 316 (1988). The court then stated that the better analysis was that a trial court should utilize those factors enumerated in Section 602 of the Illinois Marriage and Dissolution of Marriage Act ("the best interests of the child") to make a determination on removal. Although rejecting that a custodial parent in a paternity case had to file a Removal Petition the Appellate Court told the trial court to consider the "Eckert" factors which include 1) whether the proposed move would enhance the general quality of life for both the custodial parent and the child; 2) the motives of the custodial parent in pursuing the removal; 3) the motives of the non-custodial parent in resisting the removal; 4) the effect on the visitation rights of the non-custodial parent; and 5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

The Appellate Court rejected the trial court's decision that Section 609 of the Illinois Marriage and Dissolution of Marriage Act applied to this situation and stated specifically the custodial parent does not have to file a Petition for Removal under Section 609 where the parties were never married.

In 2003, the Illinois Legislature amended the Parentage Act and enacted the Parentage Act of 2003. 750 ILCS 45/13.5 states in relevant part the following:

"§ 13.5. Injunctive Relief

(a) In any action brought under this act for the initial determination of custody or visitation of a child or for modification or prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin removal of a child, the court shall consider the following factors including, but not limited to:

(1) The extent of previous involvement with the child by the party seeking to enjoin removal;

(2) The likelihood that parentage will be established; and

(3) The impact on the financial, physical and emotional health of the party being enjoined from removing the child.

(b) Injunctive relief under this Act shall be governed by the relevant provisions of the Code of Civil Procedure."

In the case of Fisher v. Waldrop 221 Ill. 2d 101, 849 N.E. 2d 334 (2006), the Illinois Supreme Court was specifically requested to review the applicability of Section 13.5 in a situation where the action was brought pursuant to the 2003 Parentage Act although the child had been born in February of 1998.

Earlier Supreme Court decisions had stated that the statutory rights and remedies available to the parties are those which were in effect at the time of the child's birth. Di Bella v. Cuccio 15 Ill. 2d 580, 155 N.E. 2d 645 (1959); De Phillips v. De Phillips 35 Ill. 2d 154, 219 N.E. 2d 465 (1966); and In Re the Paternity of Hubbard 186 Ill. App. 3d 234, 542 N.E. 2d 432 (2^nd Dist. 1989).

In the Fisher, supra case, the child in dispute was born in February of 1998. In December of 2002 the Circuit Court of Sangamon County entered an order establishing the Parent/Child Relationship between the minor child and the father (Fisher) after the mother (Waldrop) admitted that Fisher was the minor child's father. In December of 2003, the father filed a Petition for Temporary and Permanent Injunction pursuant to §13.5 of the Parentage Act of 2003 to enjoin the mother from removing the minor child to Indiana with her new husband. The mother then filed a petition pursuant to §609 of the Illinois Marriage and Dissolution of Marriage Act for leave to remove the child from Illinois. The trial court, after an extensive hearing, which included exhibits, expert testimony and the parties testifying found that there were indirect benefits to the minor child requiring the court to deny the Complaint for Injunctive Relief and permit the mother to remove the minor child from the State of Illinois.

The Appellate Court reversed the trial court and ordered the institution of a permanent injunction. The Appellate Court noted that the Legislature had amended the Parentage Act of 2003 to deal with removal, and found that the amendment was intended to achieve two ends: 1) to give never married non-custodial parents the right to forestall removal while custody issues were pending; and 2) to incorporate §609 of the Marriage Act into the 2003 Parentage Act, thereby requiring a custodial parent to seek leave to remove a child from the State under the standards set forth in §609.

An Appeal was then taken to the Illinois Supreme Court. The Illinois Supreme Court reviewed the Legislative history of the 1984 Parentage Act and noted that in 2003 the Legislature amended the Parentage Act to address removal. The Illinois Supreme Court noted that §14 of the Act deals with the initial judgment and found that there was language in §14(a)(1) which indicated that the Parentage Act of 2003 had incorporated §609 of the Illinois Marriage and Dissolution of Marriage Act relating to removal. The Court stated as follows:

"In determining custody, joint custody, removal or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act, including §609 (221 Ill. 2d at 114)"

The Illinois Supreme Court specifically rejected the mother's contention that §13.5 was the only operative section with relation to enjoining her removal. The court found that §14 and 16 of the Parentage Act clearly refer to removal as an issue to be addressed in the initial judgment and in judgment modifications. The Illinois Supreme Court said the following:

"Moreover, both sections specify that the court's determination on removal is to be made in accordance with §609 of the Marriage Act. §609 specifies that the court may grant leave to a custodial parent to remove a child from Illinois - thus the parent must first request leave - and the burden is on the custodial parent to prove that the removal would be in the child's best interest."

The mother had initially argued that unless a non-custodial parent files for the injunction pursuant to §13.5 a custodial parent in a parentage case is empowered to remove the child from the jurisdiction. The Illinois Supreme Court rejected that contention and stated that a removal petition, pursuant to §609 of the Illinois Marriage and Dissolution of Marriage Act was required.

The actual ruling in Fisher v. Waldrop, supra was that the court found that there was a significant involvement and strong relationship between the minor child and the father which would be in favor of the injunction pursuant to the statute. The Illinois Supreme Court reversed the Appellate Court's permanent injunction and remanded the case for further proceedings. The Injunction was to remain until the court adjudicates the issues of custody and visitation.

In essence, the Illinois Legislature, as supported by the Illinois Supreme Court decision in Fisher v. Waldrop, supra, has given parents of children born out of wedlock the ability to prevent removal of a child for the same reasons as children of divorced parents.