Fisher v. Waldrop

• Decision Date: 16 February 2005
• Docket Number: No. 4-04-0863.,4-04-0863.
• Citation: 291 Ill.Dec. 365,355 Ill. App.3d 1130,823 N.E.2d 657
• Parties: Vincent R. FISHER, Plaintiff-Appellant, v. Jill L. WALDROP, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

823 N.E.2d 657

355 Ill. App.3d 1130

291 Ill.Dec. 365

Vincent R. FISHER, Plaintiff-Appellant, v. Jill L. WALDROP, Defendant-Appellee.

No. 4-04-0863.

Appellate Court of Illinois, Fourth District.

February 16, 2005.

Rehearing Denied March 14, 2005.

Gregory A. Scott, Scott & Scott, P.C., Springfield, for Vincent Fisher.

Howard W. Feldman, Feldman, Wasser, Draper & Benson, Springfield, for Jill Waldrop.

Justice MYERSCOUGH delivered the opinion of the court:

Plaintiff, Vincent R. Fisher, appeals the trial court's order denying his petition for permanent injunction and granting permission to defendant, Jill L. Waldrop, to remove the parties' child from the State of Illinois. We reverse and remand with directions to grant the petition for permanent injunction.

I. BACKGROUND

Vincent and Jill never married but are the parents of Callie Fisher, born on February 6, 1998. On May 8, 2001, Vincent filed a petition to establish a parent-child relationship and a petition to establish custody, visitation, and child support, all pursuant to the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 through 27 (West 2000)). On December 2, 2002, following a hearing, the trial court found by agreement of the parties that Vincent was the father of Callie. The court awarded exclusive custody to Jill and granted liberal visitation to Vincent, which included alternating weekends and overnight visits every Thursday.

On July 5, 2003, Jill married Christopher Kitzke and moved to Williamsville, Illinois. In October 2003, Kitzke obtained new employment in Hagerstown, Indiana, located approximately 20 minutes from Richmond, Indiana. On December 5, 2003, Jill notified Vincent that she intended to move Callie to Indiana. Kitzke moved to Richmond in February 2004, while Jill and Callie remained in Springfield and lived with Jill's parents.

On December 24, 2003, Vincent filed a petition for temporary and permanent injunction pursuant to section 13.5 of the Parentage Act (750 ILCS 45/13.5 (West Supp.2003)). The petition alleged that if Jill removed Callie from Illinois, irreparable harm would occur to Vincent and his relationship with Callie, he had no adequate remedy at law, and the removal of Callie from Illinois would not be in Callie's best interests. Vincent requested that, if Jill did move from Illinois, custody of Callie be given to Vincent, with reasonable visitation privileges granted to Jill.

On December 31, 2003, Jill filed a petition for leave to remove Callie from Illinois. On January 7, 2004, Jill filed a motion to dismiss her petition for leave to remove, claiming section 13.5 of the Parentage Act (750 ILCS 45/13.5 (West Supp. 2003)) governed petitions for removal in paternity cases and it was Vincent's burden to show that an injunction was appropriate. The trial court allowed the withdrawal of the petition in June 2004.

On March 26, 2004, the trial court granted Vincent's petition for evaluation and appointed Dr. Brian Heatherton, a clinical psychologist, to evaluate the impact of potential relocation on the relationship of Vincent with Callie. In June 2004, the court held a hearing on Vincent's petition for permanent injunction.

Dr. Heatherton testified for Vincent at the hearing, and the trial court admitted his report into evidence. The report and testimony indicated that Dr. Heatherton met with Callie, Vincent, and Jill individually and also observed each parent alone with Callie. He was unable, however, to observe Callie with her stepfather, Kitzke, because she did not wish to do so. Dr. Heatherton did, however, interview Kitzke and noted Kitzke's comment that "if we are coming together as a family, [Vincent] is going to have [to] sacrifice his relationship with Callie."

Dr. Heatherton interviewed numerous other individuals, including Callie's maternal grandmother, Beverely Waldrop, kindergarten teacher, Peggy Shanle, and Daisy Scout leader, Amber Calvert. Dr. Heatherton interviewed Matt Swenny, a licensed clinical professional counselor, who provided individual and family counseling to Callie and her mother for approximately one year due to Jill's concerns about Callie's behavior. He also interviewed Dr. Helen Appleton, a licensed clinical psychologist, who saw Callie when she was 3 ½ years old because of Jill's concerns that Callie displayed "anger[-]control" issues.

According to Dr. Heatherton, five factors are instrumental to a child's level of adjustment upon moving away to live with one parent: individual risk and vulnerability, parental level of distress, stress and socioeconomic disadvantage, family process, and change of family composition. Dr. Heatherton found Callie to be well-adjusted. He did have a concern, however, with Kitzke's instability in that he had many employment transitions. He also noted a risk factor to Callie's relationship with her father, namely, that fathers who lose visitation over time are marginalized and tend to drift away, which causes the child to experience loss.

One of Dr. Heatherton's biggest concerns was with the poor relationship between Vincent and Jill. He noted that how well the parents get along is a big predictor in the father-and-child relationship. For the move to be successful, Vincent would have to be informed of Callie's every success and failure, and Vincent must be given an opportunity to articulate his opinion regarding Callie's education, extracurricular activity, and discipline. Vincent would have to provide the same type of information to Jill when Callie visited him. The lack of communication between Vincent and Jill would affect Callie's ability to adjust to her new surroundings. Dr. Heatherton concluded this factor would have a significant negative effect on Callie's relationship with her parents should she move to Indiana.

Dr. Heatherton expressed concern with Jill's relatively new marriage and the fact that she and Kitzke had yet to establish themselves as a new family. He also noted that because Callie had in the past demonstrated oppositional behavior, she may do so again given the transition. Dr. Heatherton believed that during the period of adjustment to the new family, Callie's relationship with her father would be affected. Although Jill suggested allowing more frequent phone contact and the possibility of opening an e-mail account for Callie, Dr. Heatherton stated that phone calls and e-mails do not "fulfill the need for nurturance and human touch" and given Callie's age, such communication will lack the "`rich' interaction and detail provided by seeing her father."

Dr. Heatherton acknowledged that remarriage often alleviates economic problems experienced by custodial parents in divorce. However, other stressors are associated with remarriage and relocation. Because Jill and Kitzke could expect some adjustment difficulties due to their employment, this would affect their relationship with Callie. He further noted that transportation and employment demands would affect Jill's ability to transport Callie and thereby affect Callie's visitation with her father. In fact, one such problem had already occurred. Kitzke informed Dr. Heatherton that he planned to leave work for Springfield on April 16, 2004, at noon but a crisis kept him there until 7 p.m.

Dr. Heatherton noted that Callie was very attached to both her mother and father. He expressed concerns that Kitzke commented that he did not have his own children, although such statement is not uncommon by a stepparent. Dr. Heatherton concluded that Kitzke's view of Callie will play a part in the degree to which he becomes attached to her and will, in turn, affect Callie's adjustment.

Dr. Heatherton's report did not issue a recommendation of whether it was in Callie's best interests to move to Richmond, Indiana, because the trial court did not request such a recommendation. In his report, at the court's request, Dr. Heatherton stated that the move would have a "significant effect" on Vincent's relationship with Callie. At trial, he stated that this "significant effect" would be negative.

Vincent testified that he was a safety-education officer and public-information officer with Illinois State Police (ISP) and had been employed by ISP for eight years. He exercised his visitation, attended parent-teacher conferences, and often had lunch with Callie at her school.

Vincent described some of the problems he and Jill had experienced. Vincent claimed that Jill only occasionally gave him information concerning Callie's school, such that Vincent had to contact Callie's teacher directly to get information. He and Jill communicated mostly by notes in Callie's backpack. Jill did not tell Vincent that she placed Callie in therapy with Swenny until a month after doing so. According to Vincent, Jill occasionally interfered with his telephone calls with Callie or would not be home during his scheduled time to call. Jill also allegedly scheduled activities for Callie during Vincent's visitation time.

Vincent expressed his concerns about Callie moving, including concerns about her being on the road for the approximately five hours it would take to travel to Springfield for visitation. Also, the move would not only affect Vincent's relationship with Callie but would affect Callie's relationship with her extended family members, including Vincent's sister and brother-in-law (and their children) in New Berlin, Illinois; Vincent's mother in Fairfield, Illinois; Vincent's grandmother in Charleston, Illinois; and Jill's parents in Springfield. Vincent expected Callie would participate in athletic activities in school. He expressed concern that he would rarely be able to attend these events and that the activities would affect his visitation. Vincent's sister and mother also testified as to their relationship with Callie and Vincent's "exceptional" relationship with Callie.

Jill testified at the hearing as an adverse witness during Vincent's case and on her own behalf. Jill owned her own crafting...