Jack A. v. Joan D. (In re P.D.)

• Decision Date: 13 October 2017
• Docket Number: No. 2–17–0355,2–17–0355
• Parties: IN RE Parentage of P.D., a Minor, (Jack A., Petitioner–Appellee, v. Joan D., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (2d) 170355

87 N.E.3d 1040

IN RE Parentage of P.D., a Minor, (Jack A., Petitioner–Appellee, v. Joan D., Respondent–Appellant).

No. 2–17–0355

Appellate Court of Illinois, Second District.

Opinion filed October 13, 2017

Joseph P. O'Brien, of Opal O'Brien LLC, of Wheaton, for appellant.

Kevin W. Thomas, of Law Offices of Kevin W. Thomas, of St. Charles, for appellee.

JUSTICE McLAREN delivered the judgment of the court, with opinion

¶ 1 Following an April 2017 hearing, the trial court denied respondent Joan D.'s request to relocate to New Jersey with her and petitioner John A.'s minor child. Joan appeals, arguing that the court's decision was against the manifest weight of the evidence. Joan also argues that the trial court erred in ruling on the petition without hearing closing arguments. We affirm.¹

¶ 2 I. BACKGROUND

¶ 3 Joan and John ("Jack") have one child, P.D., born September 2, 2012. Joan and Jack were never married. On May 16, 2013, Jack filed a Petition to Establish Parentage, for Joint Custody, Parenting Time, and Other Relief. A Judgment for Parentage and Custody was entered on September 20, 2013. The judgment incorporated by reference the parties' Custody and Parenting Agreement and awarded Joan and Jack joint care, custody, control and education of P.D. Joan is the residential custodian.

¶ 4 In February 2017, Joan filed a petition under section 609.2 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) ( 750 ILCS 5/609.2 (West Supp. 2015) ), seeking to remove P.D. from Illinois. In her petition, Joan alleged, inter alia, (1) she is the primary caretaker of P.D.; (2) she and Jack share joint decision-making regarding the major decisions relating to P.D.; (3) in 2015, she married her husband (Brian); (4) Brian is required to relocate to the New York City area to execute new employment duties; (5) she is employed by a company headquartered in New York City, which will allow her to maintain her employment; (6) she and Brian plan to move to Short Hills, New Jersey, a suburb 20 miles outside of New York City; and (7) the removal will enhance the quality of both her and P.D.'s life.

¶ 5 Jack filed an objection to relocation, and, in April 2017, a hearing was held on Joan's petition. The court heard testimony from the Chief Executive Officer (CEO) of Brian's employer, P.D.'s guardian ad litem(GAL), Joan, Jack, Brian, and Jack's parents and live-in girlfriend. In addition, exhibits were admitted into evidence, including email communications between Joan and Jack, the GAL's written report, Joan's suggested revision to the parenting schedule proposed by the GAL, an agreed order modifying the parties' parenting and custody agreement with respect to Jack's parenting time, and SEC documents regarding Brian's employer and the terms of Brian's employment agreement. Highlights of the testimony and evidence are broadly summarized here, while facts with specific pertinence to a determination of P.D.'s best interests are discussed more fully in the Analysis section.

¶ 6 One year prior to filing the instant petition, Joan filed a petition to relocate P.D. to California, where Brian had started an internet business and resided at the time. In a preliminary report, the GAL recommended that the petition be denied stating his concern that allowing Joan to move to California would "permit her to continue treating Jack as an outsider despite the fact that he is P.D.'s father." He was also concerned that Joan had not made a reasonable "good faith effort" to establish a schedule of parenting time for Jack and that travel between Illinois and California would have a detrimental impact on P.D., who was then three and one half years old. Joan voluntarily dismissed the petition, however, when Brian began negotiations to sell his company to his current employer, Function(x), an internet social publisher headquartered in New York City.

¶ 7 At the time the instant petition for removal was filed, Brian worked as Chief Operating Officer (COO) for Function(x) and resided with Joan and P.D. in Joan's house in Elgin, Illinois. His negotiated contract with Function(x) states "we anticipate that you will be based in our Elgin, IL, office but will travel to and work from our New York City Office as reasonably requested." The agreement includes compensation for the travel to and from New York City. Brian earns a base salary of $250,000, with substantial bonus provisions that are contingent upon the company's financial performance.

¶ 8 Brian testified at trial that he resides "half of the time" in Elgin and the other half in New York and sometimes is in New York for a full week at a time. Being away from Elgin impairs his ability to assist Joan and participate in P.D.'s life. He believes his COO duties require him to be in the New York City office full time, although he has successfully performed those duties to date while residing in Elgin. He is concerned he will lose his job if he does not move. The CEO of Function(x) testified that due to expansion of the company, he now considers it a requirement of Brian's COO position that he relocate to New York City. He did not say that Brian would be fired if he did not relocate.

¶ 9 Joan currently is an account specialist in the food service sector of a market research company, earning approximately $50,000 per year. The company is headquartered in Fort Washington, New York, and has an office in New York City. She is confident she will be able to find equivalent employment if the removal is allowed.

¶ 10 Joan feels it is in P.D.'s best interest to relocate to New Jersey because it is important to keep the family together and she is the primary caregiver. She also believes the move will enhance P.D.'s quality of life because Short Hills, New Jersey, is an affluent, "family friendly" area, with "top notch" schools. The specific house they are looking at is "nicer" and "bigger" but still has "the yard P.D. enjoys playing in." She and Brian chose a suburban environment because that is what P.D. is used to and they "wanted to keep it a stable transition for him."

¶ 11 Jack lives in St. Charles, Illinois, and works as a car salesman, earning in the vicinity of $100,000 per year. He currently has parenting time with P.D. each week from Tuesday afternoon overnight to Wednesday morning and alternating weekends from Friday evening to Sunday evening. The longest extended period of time he goes without seeing P.D. is six days. He is concerned that his relationship with P.D. could be damaged if he does not see him with the same frequency as he does now. He testified that it is not in P.D.'s best interest to be relocated to New Jersey and noted in particular that all of P.D.'s extended family lives in Illinois.

¶ 12 The GAL testified that he recommended the petition for removal to New Jersey be allowed because the circumstances that persuaded him to recommend denying the prior petition had changed. Although he remained concerned about Joan's attitude toward Jack, communication between them had improved. Additionally, the distance P.D. would need to travel is considerably less. He acknowledged that the relocation would have a "significant impact upon * * [Jack's] relationship with his son," but also observed that "the business opportunity for Brian is an incredible one for him, and as a result it's an incredible opportunity for the family, and that P.D. will benefit as well."

¶ 13 In his report, the GAL proposed a parenting schedule that would give Jack approximately the same number of days with P.D. as he currently enjoys, with 60 days consolidated in a single period during the summer and an additional 29 days distributed among holiday school breaks. After the GAL submitted the proposal, Joan submitted a "suggested revision," which provided that Joan would have P.D. in Illinois for four of the summer weekends, added seven additional parenting days for Jack in the spring, and required three of the other visitations to occur in New Jersey.

¶ 14 II. ANALYSIS

¶ 15 Prior to 2016, section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/609.2 (West Supp. 2016) ) allowed a trial court to grant a custodial parent permission to remove a minor child from Illinois when it is in the child's best interests. The parent seeking removal has the burden of proving, by a preponderance of the evidence, that removal would be in the child's best interest. See id.; In re Rogan M., 2014 IL App (1st) 141214, ¶ 8, 385 Ill.Dec. 582, 19 N.E.3d 140.

¶ 16 In applying section 609, the Illinois Supreme Court stated, "[a] determination of the best interests of the 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." In re Marriage of Eckert, 119 Ill. 2d 316, 326, 116 Ill.Dec. 220, 518 N.E.2d 1041 (1988). The Eckert court identified certain factors that might aid the trial court in determining the best interests of the child, including (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (2) the custodial parent's motives for seeking removal, to determine whether the proposed move is a ruse designed to frustrate or defeat the noncustodial parent's visitation; (3) the noncustodial parent's motives in resisting removal; (4) the effect removal will have on the noncustodial parent's visitation rights, because it is in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members; and (5) whether a reasonable visitation schedule can be worked out. In re Marriage of Collingbourne, 204 Ill. 2d 498, 522–23, 274 Ill.Dec. 440, 791 N.E.2d 532 (2003) (citing, Eckert, 119 Ill. 2d at 326–27, 116 Ill.Dec. 220, 518 N.E.2d 1041 ). In Collingbourne, the supreme court observed that the purpose of the Eckert factors is not to establish a test in which the parent seeking...