Illinois Bar Journal

November 2012Volume 100Number 11Page 574

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Joint parenting agreement allows mother to remove children to California

The Illinois Supreme Court held that a divorced mother could remove her children to California over the ex-husband's objection because their joint parenting agreement expressly allowed it.

In a decision that gives more strength to the terms of joint parenting agreements, the Illinois Supreme Court has ruled that reasonable clauses of such agreements should be honored and enforced by lower courts that had already incorporated those terms into a judgment of divorce.

In the case of In re Marriage of Coulter, 2012 IL 113474, a unanimous supreme court reversed the appellate court by holding that a divorced mother was allowed to remove her children from Illinois over the ex-husband's objection, since the terms of their joint parenting agreement (JPA) expressly stated the mother was free to remove the children to southern California 36 months after the divorce.

"The broader importance of this case is the court's recognition that the parties' agreement is what the parties' agreement says it is, and the court is under a duty to enforce it," said Momkus McCluskey LLC partner William J. Scott Jr., who chairs the ISBA's Family Law Section Council.

Scott said that trial judges sometimes refuse to enforce JPAs when they believe the terms of such agreements are not in the best interests of the children. As was mentioned in the supreme court's opinion, the Illinois Marriage and Dissolution of Marriage Act expressly grants a judge the discretion to disregard "unconscionable" terms of such agreements.

"It can almost be a free-for-all sometimes, where we're not enforcing agreements - or, what we're really doing is practicing sociology when we should be practicing law," Scott said. "This case helps that, in the sense that clearly the trial judge didn't like the [removal] provision - and I think you can sense that, when reading between the lines, the supreme court wasn't happy with it either - but [the trial and supreme courts'] position was, here, this agreement is what it says it is."

'A JPA…is a contract'

In the course of the Coulters' divorce proceedings, the parties signed a JPA that was incorporated into the trial court's divorce judgment order. According to the high court's opinion, the agreement expressly considered the mother's desire to remove the parents' three minor children to southern California, but it restricted her from doing so within 24 months of the divorce judgment.

Between 24 and 36 months after the divorce, the mother could send notice to the father of her intent to remove the children, at which time either party could request "to mediate and/or discuss a removal to southern California," and both parties contractually agreed to participate in such mediation and discussions.

If the parties failed to reach an agreement about removal, then 36 months after the divorce the mother was free to move the children to southern California and the father would have "no further right to contest the issue of removal."

Writing for the unanimous court, Justice Charles Freeman said that approximately 24 months after the divorce, the mother's attorney sent written notice to the father's attorney stating her intent to remove the children. The father took no action in response to the mother's notice until about 34 months after the divorce, at which time the father's attorney filed an emergency petition seeking to enjoin the mother from removing the children from Illinois.

Two months later (36 months after the divorce) the mother responded by filing a petition for temporary removal, stating that such removal was expressly allowed by the joint parenting agreement because 36 months had elapsed since the divorce, the opinion stated.

At about the 38-month mark, the circuit court denied the father's petition for an injunction.

"Although the [trial] court did not specifically state that it was allowing [the mother's] petition for temporary removal, it did state that it would be necessary to modify the visitation schedule because the children would be moving to California," Freeman wrote. The mother then moved with the children to California.

About a week later, the mother filed a petition for permanent removal and the father took an interlocutory appeal. According to Freeman, the appellate court "found that the circuit court abused its discretion by denying the preliminary injunction…[and] concluded that [the father] had sufficiently demonstrated the four elements required for preliminary injunctive relief."

The appellate court remanded the case to the trial court, which then ordered the mother to return with the children to Illinois. Freeman said the supreme court granted the mother's petition for leave to appeal and stayed the appellate court order, allowing the mother and children to remain in California pending the high court's decision.

In its decision, the supreme court discussed those sections of the Act that both allow the divorcing parties to incorporate a joint parenting agreement into the divorce judgment, and that allow the courts to set aside such agreements when found to be unconscionable.

"A JPA, like a marital settlement agreement (MSA), is a contract between the parties and, as such, a court's primary objective is to give effect to the intent of the parties, which must be determined only by the language of the agreement, absent an ambiguity," Freeman wrote. "The JPA that the parties presented to the circuit court at the time of their divorce evinces their agreement that removal would be in the best interests of the children, so long as they remained in Illinois for at least two years following their parents' divorce. At the very least, the JPA evinces [the father's] agreement that the planned move would not be against their best interests."

Rights of fit parents strongly protected

Freeman said that although courts may, and indeed should, question the terms of a JPA, "the right of fit parents to decide what is in their children's best interests is of constitutional magnitude.…This is in keeping with the strong public policy of Illinois to encourage parties to resolve as many issues as possible by agreement before resorting to litigation."

Scott said that when divorcing parties enter a JPA that the trial judge later approves and incorporates into the judgment, the parties are "entitled to certainty" over the reasonable terms of their contract.

"In this case, [the mother] was entitled to rely on the agreement she had with her former husband as to when she could move to southern California, and under what circumstances," Scott said. "That's what a contract is supposed to help us with."

Adam W. Lasker <> is a Chicago-based lawyer and writer.

Member Comments (2)

Wouldn't such a provision be subject to modification though? Should the father have filed a motion to modify, instead of what he did?

Ahh, just read the opinion and answered my own question.

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