Family Matters column

Family Matters

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.

In Domestic Relations the use of Temporary Restraining Orders and Preliminary Injunctions are governed by Section 501 of the Illinois Marriage and Dissolution of Marriage Act. Section 501(a)(2) provides in relative part the following:

"In all proceedings under this Act, temporary relief shall be as follows:

(a) Either party may move for...

(1) a temporary restraining order or preliminary injunction accompanied by affidavit showing a factual basis for any of the following relief:

(i) restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued;

(ii) enjoining a party from removing a child from the jurisdiction of the court;

(iii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child; or

(iv) providing other injunctive relief proper in the circumstances,"

The requirements for an Injunction under Domestic Relations Law is the same as the requirements under the Code of Civil Procedure. In Re the Marriage of Elliott, 265 Ill. App. 3d 912, 638 N.E.2d 1172 (2^nd Dist. 1994); In Re the Marriage of Schmidt, 118 Ill. App. 3d 467, 455 N.E.2d 123 (1^st Dist. 1983). Those requirements for an injunction are as follows:

1. That the party moving for the injunction possesses a clearly ascertainable right which needs protection;

2. That the moving party will suffer irreparable harm without the injunction;

3. That there is no adequate remedy at law for the injury; and

4. That the moving party is likely to be successful on the merits of this action.

In addition the moving party must establish that the need for temporary relief outweighs any possible injury that the party to be enjoined might suffer by its issuance. Carrillo v. Jam Productions Limited, 108 Ill.App.3d 126, 438 N.E.2d 1197 (1982).

In the case of In Re the Marriage of Schmidt, supra, the Appellate Court was reviewing the denial of the husband's Motion to Dissolve a Preliminary Injunction and a Temporary Restraining Order which prohibited him from disposing of his real and personal property and any assets in which he held any interest whatsoever. The ex-wife had brought a Petition for Rule to Show Cause and a Petition for a Temporary Restraining Order and Preliminary Injunction based upon the failure of the husband to make a mortgage payment as required under the Judgment for Dissolution of Marriage. In her Petition for a Temporary Restraining Order the wife stated as follows:

"4. Based upon Respondent's contemptuous, deceitful behavior over the past two years, the Petitioner believes that he would "hide", transfer, dissipate his assets and interest if given notice of these proceedings before entry of a restraining order."

That the petition went on to request that the court prohibit the ex-husband from disposing of any real and personal property and any assets in which he held any interest whatsoever.

The court found, in an ex parte hearing, that irreparable harm could result to the ex-wife if the ex-husband was given notice of the proceeding and granted the Temporary Restraining Order requested by the ex-wife. Three weeks later the trial court entered an order which elevated the Temporary Restraining Order to a Preliminary Injunction. Attorneys for both parties were before the court but no pleadings had been filed by the Respondent. The ex-husband then filed a Motion to Dissolve the Temporary Restraining Order and Preliminary Injunction which the trial court heard and after a hearing, denied the same. An appeal was then taken to the 1^st District Appellate Court.

The Appellate Court dissolved the Preliminary Injunction due to the fact that the Petitioner, the ex-wife, had not alleged specific facts which showed that her remedy at law was inadequate or that she would suffer irreparable harm without injunctive relief. Additionally, the court commented that Section 501 of the Illinois Marriage and Dissolution of Marriage Act requires that the movant show a factual basis for the relief sought by the use of an affidavit.

The court further went on to state that Section 11-101 of the Code of Civil Procedure provides that "no temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.

The Appellate Court also stated that the allegations made by the ex-wife in her petition, made upon information and belief are not sufficient to support a preliminary injunction. The court also noted that they did not believe that an allegation that the ex-husband had willfully and contumaciously failed to make a payment, by itself, would warrant the issuance of a Temporary Restraining Order or a Preliminary Injunction. More to the point, the court did not believe that such an allegation establishes that there is no adequate remedy at law for the failure to make such a payment.

As we are all aware, first and foremost, Domestic Relations courts are courts of equitable jurisdiction. The trial court judge in a domestic relations case has the jurisdiction to hear all issues which are justiciable in nature. In Re the Marriage of Peshek, 89 Ill.App.3d 959, 412 N.E.2d 898 (1^st Dist. 1980). That Domestic Relations courts retain their traditional equitable power despite Legislative encroachment. In Re the Marriage of Pahlke, 120 Ill.App.3d, 1009, 458 N.E.2d 1141 (1^st Dist. 1983)

The use of injunctions in domestic relations cases is a powerful tool in protecting the client's rights in marital property and preserving the status quo. However, there are requirements for the issuance of injunctive relief and a careful practitioner needs to make the determination that they have sufficient facts to substantiate that irreparable harm will be suffered by the moving party without an injunction and that the moving party is without an adequate remedy at law. Further, Section 501 of the Illinois Marriage and Dissolution of Marriage Act requires that a party moving for this type of relief attach an affidavit showing a factual basis for such relief.

In a case where someone removes a child from the jurisdiction or threatens to remove a child from the jurisdiction, the requisite factual allegations need to be set forth not only in the body of the motion but also in an affidavit.

It is when there is a financial question that the court will require additional factual allegations, stated affirmatively and not on information and belief to issue injunctive relief.

We live in a very mobile society. As a result it is not unusual for a practitioner in domestic relations to encounter issues involving the removal of a minor child(ren) from the State of Illinois. In Dissolution cases the majority of removal situations arose on Post Decree Petitions.

Accordingly, the paramount question in a removal case is whether the removal is in the best interest of the child(ren) to be removed. In Re the Marriage of Eckert, 199 Ill. 2d 316, 518 N.E. 2d 1041 (1988). The court in Eckert was asked to review a Petition for Leave to Remove the child from Illinois to Arizona. In Eckert, supra, the Illinois Supreme Court was reviewing the Appellate Court's decision to allow the custodial parents to move from Illinois to Arizona. The trial court had denied the Petition for Removal by the Custodial Parent because the Court found that the best interest of the child would be better served by his continued residence in Illinois near his father and extended family including all of his surviving grandparents.

The Appellate Court found that this was against the manifest weight of the evidence in that the custodial parent had plausible reasons for the move; 1) that the custodial parent's two sons had a strong attachment to each other and were to remain together; 2) that the custodial parent had been dating a physician in Yuma, AZ with some talk of marriage; and finally, 3) that the only detriment that the non-custodial parent could establish was the diminution of visitation. (It should be noted that the custodial parent had another son from a prior marriage who had asthma which was part of the reason for the custodial parent to request leave to remove the minor child that she had with Mr. Eckert to the State of Arizona.)

The trial court had appointed a psychologist who had determined, that both the mother and father were excellent, loving parents and that the minor child had developed a strong attachment for both his mother and his father. The conclusion of the court appointed psychologist was that the parties and the minor child's best interest would be served by remaining in the Belleville, Illinois area.

The Eckert court reversed the Fifth District Appellate Court and reinstated the decision of the trial court in denying the custodial parent permission to remove the minor child to the State of Arizona.

The Illinois Supreme Court, in denying the removal cited Section 609 of the Illinois Marriage and Dissolution of Marriage Act which states in relevant part the following:

"§609. Leave to Remove Children.

(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove said child or children from Illinois whenever such approval is in the best interest of such child or children. The burden of proving that such removal is in the best interest of such child or children is on the party seeking the removal. Once said removal is permitted, the court may require the party removing such child or children from Illinois to give a reasonable security guaranteeing the return of such children."

The Court found that the custodial parents desire to move to another state, without more, was insufficient to show that the move would be in the children's best interest. The Illinois Supreme Court then declared the following in deciding whether removal is in a child's best interest.

"In deciding whether removal is in the child's best interest, a trial court should hear any and all relevant evidence (citations omitted)

A determination of the best interest of a 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 omitted). There are, however several factors which may aid a trial court in determining the best interest of the child. The court should consider the proposed move in terms of enhancing the general quality of life for both the custodial parent and the children. (citations omitted). The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. (citations omitted). Similarly, the court should consider the motives of the non-custodial parent in resisting the removal. (citation omitted). It is also in the best interest of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the non-custodial parents should be carefully considered (citations omitted). Another factor is whether, in a given case of realistic and reasonable visitation schedule can be reached if the move is allowed." 119 Ill. 2d at 326.

(Editor's Note: Most of the citations omitted are from out-of-state cases cited by the Illinois Supreme Court)

Subsequent to the Eckert there have been a number of decisions that relate to what would enhance the quality of a child's life and therefore be in the best interest of the child. In the case of In Re the Marriage of Smith, 172 Ill. 2d, 312, 665 N.E. 2d 1209 (1996), the Illinois Supreme Court was asked to reverse the denial of a petition to remove children to the State of New Jersey from Illinois. In this case, the trial court appointed a psychotherapist to conduct a psychological evaluation of all the parties and the children. The evaluation centered on the affect that a move to New Jersey would have on the 11 year old child of the parties, Courtni. The psychotherapist found that the child was very troubled and recommended that all stress, pressure and conflict be minimized in her life. The psychotherapist recommended against a Joint Parenting Agreement which involved a constant shuttling between the two households as it was causing the minor child emotional stress and strain. Finally, the psychotherapist advised that the plans of the custodial parent to relocate the children to New Jersey if she was awarded sole custody would be such a change that would prove to be too big of an adjustment for the minor child and would adversely affect her.

The mother in that case, who was seeking removal to New Jersey argued that since the quality of her life had been enhanced through a successful marriage that this would indirectly enhance the child's quality of life and therefore, be in the best interest of the child. The Illinois Supreme Court rejected this argument and found that despite an indirect enhancement factor the mother had failed to show that an overall enhancement of the children's lives would result from the move. The Smith court found controlling the following factors gleaned from the Eckert opinion: a) whether a reasonable visitation schedule can be reached if the move is allowed; b) if removal to a distant jurisdiction will substantially impair the non-custodial parent's involvement with the children; and c) the harm to the children which may result.

The most compelling evidence that the courts relied upon was the fact that the minor children at issue, were extremely close to the non-custodial parent. The fact that the non-custodial parent was exercising consistent visitation rights is a key factor.

The determination of the best interest of the child cannot be reduced to a simple bright-line test. It is necessary to develop the evidence to present to the trial court as to what would be in the child's best interest.

On the other hand, if you are opposing a petition for removal it is necessary that you establish that your client has a close relationship with the child(ren) and has exercised his right to consistent visitation with those children.