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The Challenge
The newsletter of the ISBA’s Standing Committee on Racial and Ethnic Minorities and the Law

May 2004, vol. 14, no. 4

Relocation in custody and divorce: Giving weight to the best interests of the custodial parent in alignment with the best interests of the child

Relocation post-divorce presents concerns for the custodial as well as the non-custodial parent. In 1988, the Illinois Supreme Court set forth in Eckert a five-factor balancing test to be used in determining what are the "best interests" of the child in such situations as when the custodial parent wants to relocate outside the borders of the state of Illinois. In May 2003, the court more fully articulated these factors inIn re Marriage of Collingbourne, determining that if a petitioner wishing to relocate can prove by a preponderance of the evidence the anticipated move will benefit the petitioner, and thus the children, relocation outside the state of Illinois will be permitted when a realistic and reasonable visitation schedule can be created. In re Marriage of Collingbourne, 204 Ill.2d 498, 791 N.E.2d 532, 274 Ill. Dec. 440 (2003).

The Collingbournes, Soryia and Geoff, were married June 13, 1985, and subsequently had two children, Geoffrey, born January 11, 1986, and Tyler, born January 10, 1991. The judgment for dissolution of this marriage was entered on September 1, 1999. The marital settlement agreement provided for joint custody of the children with Geoff getting sole physical custody of Geoffrey and Soryia getting sole physical custody of Tyler. The joint parenting agreement outlined that both parties would have equal rights and responsibilities with both boys in any major decisions but day-to-day decisions regarding each boy was the responsibility of the custodial parent. A liberal visitation schedule that would allow time for both boys to be together was also established.

One and a half years after the divorce was final, Soryia petitioned in Kane County seeking consent to remove Tyler, then 10, from Illinois to Massachusetts. Soryia had been dating a man, Mark Rothman, from Massachusetts who could not relocate to Illinois for undeniable business reasons. Additionally, Soryia's sales job in Kane County had become unstable and Mark had offered her a position with his company at a substantial salary increase and a more flexible work schedule to accommodate Tyler's school schedule and allow him to become involved in more extracurricular activities. Based on these changes, Soryia alleged that both she and Tyler's lives would be enhanced and her only motive was to provide the best life possible for her young son, Tyler.

Although Soryia had proposed a visitation schedule with frequent return trips to Illinois for holiday times and school breaks which amounted to more time spent with Geoff, his new wife and Geoffrey than currently in place, Geoff opposed the removal of Tyler from Illinois claiming Soryia was only motivated to improve her own life. He proposed that physical custody of Tyler be transferred to him with a visitation schedule established with Soryia.

At trial, the circuit court heard testimony regarding Tyler and Soryia's current lifestyle: living in a two bedroom apartment, Tyler in day care after school until 5:00 p.m., limited extracurricular activity, sporadic visits with older brother Geoffrey (then 15), Soryia's required overnight business trips, and Geoff's missed visitation with Tyler. Additionally, the trial court heard testimony regarding the educational opportunities in both living situations that would be available to Tyler and concluded that both the Illinois and Massachusetts districts were qualified and would provide Tyler with a good education.

While Geoff was on the witness stand, he pleaded with the court to prevent Tyler from leaving the state because their close relationship would be heavily burdened and would most likely suffer because of the distance. However, Geoff admitted to missing some visitation time with Tyler because of his work schedule and that the move would not be in Geoff's own best interests. Geoff also acknowledged that he has not played an active role in Tyler's education or extracurricular activities. One of his serious worries was not being able to have Tyler on holidays spent with extended family, one privilege he has enjoyed since the divorce. However, the visitation schedule proposed by Soryia includes trips to see Geoff and Geoffrey around holiday times.

In an in camera interview with Tyler, the trial court learned that Tyler's four trips to Massachusetts with his mother were "okay" but traveling was not a fear. Tyler did fear leaving his friends and family but did not like the day care program and only spent limited time with his brother Geoffrey.

With Section 609 of the Illinois Marriage and Dissolution of Marriage Act and In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E. 2d 1041, 116 Ill. Dec. 220 (1988) as its guide, the trial court granted Soryia's petition to remove Tyler from Illinois. The court concluded that Soryia had met her burden under the statute and that since the general quality of life for both Soryia and Tyler would be improved, it was in the child's best interests that removal be granted. Geoff appealed and the appellate court reversed the trial court's decision because the evidence did not establish that Tyler would experience a substantial direct benefit, even though there was evidence to show that Soryia would benefit. The benefits Soryia would derive from relocation and remarriage would occur in almost every instance of remarriage and the court concluded this factor alone does not determine a direct beneficial result for a child.

The majority of the appellate court also determined that the modified visitation schedule, which was comparable to the visitation schedule enacted at the time of the divorce, was not in Tyler's best interest. They viewed the time on airplanes to reach Illinois and the time away from his Massachusetts home as time-consuming and burdensome on a minor child. For these reasons, the court determined that it was in Tyler's best interest to remain in Illinois to maintain his close relationship with his father, brother and extended family. The lone dissenting justice stated that the majority had failed to demonstrate that the trial court findings were contrary to the manifest weight of the evidence. Justice Bowman stated in his dissent that he would affirm the circuit court's ruling because that court was in the best position to evaluate the evidence and observe the witnesses, especially Tyler and his parents, to determine the living arrangements that would be in Tyler's best interest. Soryia then was granted leave to appeal this ruling by the Illinois Supreme Court.

As done by the trial court, the Illinois Supreme Court determined that 750 ILCS 5/609(a) governs Soryia's petition for removal. That statute reads in part: "The court may grant leave to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal."

The two issues on appeal were: 1) The appellate court incorrectly required the parent seeking removal to prove that the child would reap a direct benefit from the move and 2) The appellate court refused to give weight to the substantial indirect benefits that flow to a child as a result of the enhancement of the general quality of life for the custodial parent. Geoff maintains that the appellate reversal was appropriate because Soryia's sole reason to petition for removal was so that she could marry and live with Mark. He argues that these direct benefits to the custodial parent do not meet the burden required by the statute to show that these benefits resulting from the removal would result in a move that is in the child's best interest.

The Eckert factors in removal decisions

In its analysis, the Illinois Supreme Court referred to their 1988 decision, In re Marriage of Eckert, to explain that in a petition for removal the paramount question is still what is in the minor child's best interest. In Eckert, Carol Eckert petitioned the trial court for leave to remove her son from Illinois to Arizona. The trial court denied the petition but the appellate court concluded that the denial was against the manifest weight of the evidence and the best interests of the child would be served if removal was allowed. Mark Eckert appealed.

The facts that the trial court of the Eckert case uncovered are as follows: parties were married in 1976 and divorced in 1983; Carol was awarded custody of one son. Carol had custody of another minor son from a previous relationship who had asthma. Mark was awarded extensive visitation. While Carol was teaching nursing in the St. Louis area for $21,000 per year, she was offered teaching position in Yuma, Arizona, with salary approximately $23,000. Carol had not pursued other teaching positions in St. Louis area. Carol was dating a physician in Yuma but no definite marriage plans had been made.

The court-appointed psychologist concluded that their son had developed close relationships with both parents and the child's best interests would be served by remaining in the St. Louis area. Additionally, the court determined that Mark never missed visitation and was very active in his son's education and extracurricular activities. Based on these circumstances, the trial court concluded that the continuing and close relationship between Mark and his son were favored over the move to Yuma, which petitioner did not establish would provide benefits to her son.

The appellate court reversed this decision and found the trial court's decision was against the manifest weight of the evidence because: 1) Carol had a good reason to move; 2) the two minor boys would be able to maintain their close relationship; 3) Carol was dating someone in Arizona; and 4) Mark would only suffer a reduction in amount of visitation. Mark argues that this court disregarded the best interests of the child requirement set forth in the statute by allowing removal based solely on the custodial parent's desire to move. The Illinois Supreme Court agreed with Mark's argument when it reversed the appellate court.

In Eckert, the court clearly established that a decision to grant removal is a fact-intensive decision to be determined on a case-by-case basis. Certain factors that should be considered include: likelihood of the move enhancing the quality of life for both the custodial parent and the child, motive of the moving party in seeking removal, motive of non-custodial to resist removal, visitation rights of the non-custodial parent, and likelihood of realistic and reasonable visitation after removal from state. When the court applied these factors to the case brought before it in Eckert, it concluded that Carol had not met her burden in proving that the move would enhance their lives since the nursing job she was offered provided little more salary than her current position. She also offered no proof that conditions in Arizona would substantially improve the health of her asthmatic son. On the other hand, facts indicated that Mark was an "exemplary parent" and that "he had an especially good relationship with his son" which would be substantially burdened if the court allowed removal to Arizona, since a reasonable and affordable visitation schedule had not been proposed. 518 N.E. 2d at 1047. Since the trial court's determination was not against the manifest weight of the evidence, the Supreme Court reversed the appellate court and affirmed the trial court's denial of Carol's petition.

Court's analysis of Collingbourne under Eckert

Since its determination in Eckert, the court has emphasized that the enumerated factors outlined in that case are not exclusive. Other relevant factors which the trial court determines important in deciding the best interests of a child may be considered. In Collingbourne, the court explained that these factors were set out not as a test to be applied by circuit courts but rather factors such as this should be considered and balanced in arriving at a child's best interest determination.

After applying the Eckert factors to the instant case, the Supreme Court determined that the trial court correctly granted Soryia's petition for removal. Soryia had demonstrated that the beneficial change in lifestyle would outweigh the burden of the move, as was her burden of proof to meet as the parent seeking removal of the child. The indirect benefits that Tyler would derive from the direct benefits that his custodial parent will enjoy are sufficient justification to grant the removal. Although Geoff argued that removal should only be allowed if the custodial parent could prove that the move would result in some direct benefits to Tyler, the court explained the minor child would likely not benefit directly from a move immediately. But since "there is a palpable nexus between the custodial parent's quality of life and the child's quality of life," the court concluded that what benefits the custodial parent necessarily provides a benefit to the minor child. 802 N.E. 2d at 547. Since a custodial parent has presumably acted in the child's best interest since being awarded custody, the custodial parent's desire to remove a child from the state deserves some deference. Id. The best interests of the child cannot easily be separated from those of the custodial parent, upon whom the child depends for care. Id. Since Soryia had presented substantial evidence at trial with regards to benefits that would be derived from the move, the trial court determined that the quality of life for both Soryia and Tyler would be improved and this Eckert factor had been met to determine that the move would be in Tyler's best interest.

In assessing the motives of the parties, Eckert factors two and three, the trial court determined that neither party had an invalid motive to either petition for the removal or resist the removal. Since both parties were sincerely concerned about Tyler's best interests, these factors did not apply any weight to either side of the argument.

The fifth Eckert factor, which emphasizes that the court carefully consider the visitation schedule afforded the non-custodial parent, however, did provide Soryia with weight on her side. The petitioner had proposed a realistic and reasonable visitation schedule to be subsidized by her. The new arrangement would allow equivalent time spent with his father and his new family as had occurred under the old visitation schedule. It would also allow for extended periods of time for Tyler and Geoff to spend together, especially around the holidays and on school vacations. The court observed that the travel time involved in the new visitation schedule would not be significantly greater for the child than if Soryia had chosen to move to Southern Illinois, rather than Massachusetts. Both the quality and quantity of the proposed visitation schedule meet the reasonable and realistic requirement set forth in Eckert. The Supreme Court concluded that the trial court findings regarding visitation were not manifestly erroneous.

Since the Eckert factors were met and Soryia established that removal would be in Tyler's best interest at this time, the Supreme Court concluded that removal should have been granted. It emphasized that the ever-changing family dynamics must allow for both parties subsequent to a divorce to go his or her own way in order to better the quality of his or her life.

Fourth District applies Eckert and Collingbourne

Using the five-part Eckert test and an analysis similar to that used in Collingbourne, the Illinois Appellate Court for the Fourth District reviewed the issue of relocation post-divorce in a December 2003 decision, In re Marriage of Parr, 345 Ill. App. 3d 371, 802 N.E. 2d 393, 280 Ill. Dec. 468 (2003). In Parr, the petitioner sought review of a decision from the circuit court of Vermillion County which had given her custody of the minor children, but refused to allow her to relocate to Colorado. Since the parties' divorce in June 2001, the petitioner had returned to graduate school and had obtained her PhD in animal nutrition. She had been offered a position by Colorado Quality Research, Inc. as investigator/director of nutrition with a base salary of $67,650. Additionally, there was the added enhancement of a reasonable expectation of an additional 10 percent to 15 percent performance/profit sharing bonus, $5,000 to cover moving expenses and CQR would pay 85 percent of her health insurance premium. The position's hours were fixed from 7:00 a.m. to 4:00 p.m. with almost no travel involved. CQR is located in Wellington, Colorado, which is about 10 miles north of Fort Collins.

At trial, the petitioner testified that the University of Illinois did not have any positions available for her. Her current income was the $1,100 she earned monthly as a graduate assistant, with a tuition waiver. She was also receiving financial assistance from her father. Securing full-time employment was essential. She had actively sought employment in the Midwest, working with a headhunter and sending out 19 resumes. Her job search efforts had led to only one possible avenue of employment, in Princeton, Missouri. This was a position that paid $50,000 a year and offered her little opportunity for advancement. It was also a seven-hour drive from Caitlin, where the petitioner resided with the children.

The respondent objected to the move, stating his visitation time with the children would be greatly reduced and the children would suffer being removed from Caitlin, where they had lived all their lives. Respondent lived in Frankfort, Indiana, which is about a 1-hour-and-25-minute drive from Caitlin. He had been living there full-time since 1998, traveling to Caitlin to see the children on weekends.

The trial court denied petitioner's request for removal, saying that she had not met the burden of proof in satisfying the Eckert factors, particularly the fourth and fifth prongs, dealing with establishing a realistic and reasonable visitation schedule. Petitioner filed a timely appeal, saying the trial court erred in denying her request to remove the children to Colorado. The appellate court took issue with the trial court's statements related to its determination that a visitation schedule could not be established that was reasonable and realistic. The appellate court took this opportunity to reiterate that the Eckertfactors do not establish a bright-line test, which requires the custodial parent to meet every prong. Instead, the court stated that the Eckert factors are "not exclusive and are only factors to be considered and balanced in determining whether removal is in the child's best interests." 802 N.E. 2d at 399. It appeared here that the lower court understood Eckert to require satisfying each prong of the test, rather than weighing and balancing the relevant factors in making a determination as to whether or not removal was in the child's best interest.

In Parr, the appellate court found that as to the first Eckert factor, the quality of life for the petitioner, and thus the children, would be greatly enhanced by the salary the petitioner would receive in her new position at CQR. While the move would require adjustment, so would the petitioner's change from student to full-time employee status require adjustment for the family.

As to the second and third Eckert factors, both petitioner and respondent were considered to be well-intentioned, thus no weight was given to either party under this factor. The petitioner was not moving as a way to frustrate or defeat visitation, and the non-custodial parent was not resisting the move simply to be stubborn or to put unnecessary obstacles in the path of the custodial parent.

The appellate court found objectionable the trial court judge's determination that because of the distance involved a reasonable visitation schedule could not be created. The appellate court determined that this basically gave the non-custodial parent veto power over the custodial parent's decision to move out of the state, no matter how valid the reasons for that move might be. The Eckert decision does not give the non-custodial parent this kind of veto power. The custodial parent's interests are not to be automatically subordinated to those of the non-custodial parent in a removal situation. Collingbourne, 791 N.E.2d at 548.

Preservation of the non-custodial parent/child relationship is very important, but that does not outweigh the "enhancement of the quality of life for both the petitioner and the children." Parr, 802 N.E. 2d at 379. In this case, because the petitioner had completed her education, her sources of income (scholarships and financial aid) were soon to end, requiring she find employment. Her expenses would increase because she would need to begin to pay off her school loans. The child support she received was insufficient to cover all of her household expenses. And her employment search revealed no jobs were available in her field in the Caitlin area. Additionally, the job she was offered in Colorado would provide for her economic needs, allow her a flexible schedule to meet the needs of her children and move her family to an area similar to Caitlin. The court was certain that a reasonable and realistic visitation schedule, perEckert, could be arranged for the children and the respondent father to maintain their close relationship.

The appellate court concluded that the denial of the petitioner's request to move to Colorado with the minor children was against the manifest weight of the evidence and reversed the trial court's decision on this issue.

Court recognizes custodial parent's right to relocate out of state

In conclusion, the Illinois Supreme Court has taken a clear step forward with their decision inCollingbourne, further refining for the appellate court's application the five-factor test set forth in Eckert. With more than one-half of marriages ending in divorce, many families have to grapple with decisions about relocation and what is in the best interests of the children. No custodial parent ought be held captive by the non-custodial parent's refusal to cooperate about relocation, particularly when there are clear economic advantages for the move. The child's best interests are served when the custodial parent's economic and social needs are being met. There is then a trickle down of benefits to the child or children involved. As the court in Parr, citing Eckert, stated, "our society is a mobile one ...the best interests of the children cannot be fully understood without also considering the best interests of the custodial parent." The five-factor balancing test set forth in Eckert does just that.