A mobile society
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.
