State: Illinois
Court: 1st District Appellate
Docket No: 1-95-3282
Case Date: 03/27/1997
FOURTH DIVISION
MARCH 27, 1997
1--95--3282
In re MARRIAGE OF ) Appeal from the Circuit
) Court of Cook County
JOSEPH M. WALKER, )
)
Petitioner-Appellant, )
)
and ) No. 90 D 581
)
JEANNE M. WALKER, )
) Honorable Richard
Respondent-Appellee. ) Kelly, Judge
) Presiding.
JUSTICE CERDA delivered the opinion of the court:
Petitioner, Joseph M. Walker, appeals from the order of the
circuit court of Cook County granting the motion of respondent,
Jeanne M. Walker, for Illinois to concede jurisdiction over the
child-custody proceeding to Minnesota. We affirm.
The parties were married on September 29, 1979, and their
child, Joseph, was born on October 23, 1986. On January 16,
1990, petitioner filed a petition for dissolution of his
marriage. On August 22, 1991, a judgment of dissolution of
marriage was entered, incorporating a marital settlement
agreement. The parties were awarded joint legal and physical
custody of the child, who would reside 50% of the time with each
parent. Beginning in September 1992, the child was to reside
with petitioner each summer. The child was also to reside with
petitioner during Easter and alternating Christmas vacations.
Respondent was given the right to move with the child to
Minnesota.
Paragraph 2.11 of the settlement agreement stated in part:
"Parties further agree that upon the minor child attaining
the age of twelve (12) he shall have a right to express a
preference in determining which parent he would desire to
reside with ***. In the event the parties are unable to
reach an accord, nothing in this paragraph shall prohibit a
party from filing a Petition for Modification of Residence
or Visitation, all in accordance with Chap. 40, Ill. Rev.
Stat." (Emphasis added.)
Paragraph 2.17 stated:
"In the event the parties are unable to agree to the
specifics necessary to carry out the intentions of Article
II [captioned 'Child Custody and Visitations'] of this
Agreement, any dispute shall be submitted to a court of
competent jurisdiction upon proper notice, petition and
hearing for determination." (Emphasis added.)
Paragraph 14.5(G) stated:
"This Agreement shall be construed under the general
laws of the State of Illinois, irrespective of the later
domicile or residence of the HUSBAND or the WIFE."
(Emphasis added.)
On December 29, 1994, petitioner filed a petition seeking to
become the primary residential custodial parent. Petitioner
alleged that there had been substantial changes of circumstances
that caused the child's primary living environment to jeopardize
his well being. Petitioner alleged that the child had behavioral
problems and challenged the respondent's parenting.
Petitioner also filed a motion for a Supreme Court Rule
215(a) mental examination of the child by Dr. Robert E. Bussell,
a psychiatrist in Illinois. 134 Ill. 2d R. 215(a). Petitioner
argued that he believed that the child was currently under
psychotherapeutic care and that a psychiatric evaluation would
determine the fitness of both parents and the mental and
emotional state of the child. On May 10, 1995, the trial court
ordered that respondent and the child meet with Dr. Bussell so
that he could prepare a custody evaluation.
On April 17, 1995, respondent filed a motion for the court
to concede jurisdiction of the custody proceeding to a Minnesota
court. Respondent argued that Illinois was an inconvenient forum
and that Minnesota was a more appropriate forum.
At the June 1995 hearing on respondent's motion, petitioner
testified that from September 1991 until the fall of 1992, when
the child started school, the child spent 6 out of 11 months with
him. There were substantial periods of time that the child was
in a day-care center. There were two teachers from the day-care
center who could testify about the child. Petitioner's present
wife was involved with various activities. The child had friends
in the neighborhood, and the parents of the friends had observed
petitioner with the child. The child's cousin lived a few miles
away. Petitioner had an adult daughter and son in Wisconsin who
saw the child when they visited. The child had seen the court-
appointed psychiatrist twice, and the third visit was scheduled
soon. Petitioner had seen the psychiatrist at least six times.
His present wife had a townhome in Minnesota, and he went there
every two or three months. The child also had visited there.
Respondent testified at the hearing that she was born in
Minnesota and that she resided in Minnesota her entire life prior
to her marriage. She did not reside in Minnesota from March 1988
to September 1991. The child lived in Minnesota from 1986 until
March 1988 and moved back to Minnesota with her in the fall of
1991. In the past year, the child spent the two-week Christmas
holiday, the one-week Easter holiday, and the summer vacation
with petitioner in Illinois.
The child was diagnosed with attention deficit hyperactive
disorder (ADHD) and with developmental delays. Respondent
intended to call to testify each of the 25 witnesses referenced
in her motion to concede jurisdiction. She testified about the
contacts and knowledge of the following potential witnesses, who
were located in Minnesota: the director of the day-care center
where the child attended from 1991 until 1994; the assistant
director at that day-care center; the principal of the child's
kindergarten school, who worked with respondent on the child's
ADHD; the child's kindergarten teacher; the principal of the
elementary school where the child attended first grade and with
whom respondent had had several consultations concerning the
child's behavior; a social worker at the elementary school, who
met for a period during first grade with the child once a week or
once every other week; the child's first-grade teacher; the
principal of the child's second-grade school, with whom
respondent discussed the child's ADHD and who headed up a task
force of professionals at the school to help the child's
developmental delays; the social worker when the child was in
second grade; the child's psychologist, who had been treating the
child since the fall of 1994; a tutor who began working with the
child in February 1995 and assessed the child's developmental
delays; the child's pediatrician; respondent's father, who saw
the child at least every other week; respondent's mother;
respondent's grandmother; respondent's five brothers and sisters
and their spouses; the child's cousins; respondent's fianc
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