In re Parentage of R.P.P. III

SUPREME COURT CASES

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-08-0881 Rel

Case Date: 08/18/2009

Preview:No. 3--08--0881 _________________________________________________________________ Filed August 18, 2009 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2009 In re PARENTAGE OF R.P.P. III ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, a Minor, ) Will County, Illinois, ) (R.B.P., Jr., ) ) Petitioner-Appellee, ) No. 08--F--363 ) v. ) ) Traci L. Lowery, ) ) Honorable Lawrence C. Gray, Respondent-Appellant). ) Judge, Presiding. _________________________________________________________________ JUSTICE SCHMIDT delivered the opinion of the court: _________________________________________________________________ This is an interlocutory appeal from an order of the circuit court of Will County that granted petitioner, R.B.P., Jr.'s motion to return the minor child to the state of Illinois. Respondent, Traci Lowery, appeals, claiming the trial court erred in granting petitioner's motion as she was not required to seek judicial permission prior to leaving the state with the minor child and the court improperly applied section 609 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/609) (West 2008)) instead of section 13.5 of the Illinois Parentage Act of 1984 (750 ILCS 45/13.5 (West 2008)). BACKGROUND

The relationship between R.B.P., Jr., and Traci Lowery produced a minor child born on June 20, 2006. While the two

never married, there is no dispute that petitioner is the father of the minor child. Petitioner is listed on the minor child's He lived with Traci and the

birth certificate as the father.

minor in Coal City from June of 2006 until July of 2007. In July of 2007, Traci and the minor moved to her mother's house in Plainfield. On July 12, 2007, Traci obtained an

emergency order of protection in Will County after petitioner allegedly made a series of threatening phone calls to her. These

alleged calls included a threat to burn the family's house down with Traci and the minor child in it. On December 3, 2007, an

incident occurred in which petitioner slammed Traci's head to the floor. This incident resulted in petitioner being charged with, The

and pleading guilty to, domestic battery in Will County.

incident also resulted in investigation by the Department of Children and Family Services (DCFS) with which petitioner refused to cooperate. On March 8, 2008, Traci and the minor child fled her mother's house and moved to her grandmother's house in Mesa, Arizona. since. Traci and the minor child have lived in Arizona ever Traci is attending school in Arizona, not working, and She claims to receive financial support

claims to be destitute.

from her family and food stamps from the state of Arizona. 2

At the time of Traci's move, petitioner had not instituted any legal proceedings regarding the minor child. On March 25, 2008, 17 days after Traci left for Arizona, petitioner filed a petition to establish paternity in the circuit court of Will County. Traci was served by substitute service on April 7, 2008,

in Mesa, Arizona. On June 10, 2008, Traci answered the petition to establish paternity, admitting the allegations in the petition that alleged petitioner is the father of the minor, but objecting to the prayer for relief that asked the court to award custody to him. On July 31, 2008, R.B.P., Jr., filed a motion for immediate return of the minor child to the state of Illinois. Petitioner's

motion states that pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/609 (West 2008)) and section 14(a)(1) of the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/14(a)(1) (West 2008)), Traci's actions "in secreting the minor child from the petitioner" were "clearly contrary to the interest of the minor child." On September 26, 2008, the trial court granted The

petitioner's motion for immediate return of the minor child.

court ordered that Traci was to appear on October 10, 2008, with the minor child. When granting the motion, the trial court found that "609 applies" with no discussion of how or why it applies. 3 Neither

the oral argument transcripts from the hearing on the motion, the transcripts from the motion to reconsider, nor the written order contains any additional analysis as to the basis for the trial court's ruling other than "609 applies." Traci's timely motion

to reconsider was denied and this appeal followed. STANDARD OF REVIEW Traci argues that the trial court applied an incorrect and inapplicable statute (section 609 of the Marriage Act (750 ILCS 5/609 (West 2008))) to this matter. She argues that section 609

does not apply to her and that the only authority under which the trial court could have ordered her return is found in section 13.5 of the Parentage Act (750 ILCS 45/13.5 (West 2008)). such, Traci claims, the trial court was required to hold a hearing pursuant to section 13.5 of the Parentage Act before issuing an injunction that mandated the child's return. The As

issue of which statute applies in this matter is a question of law we review de novo. 1112 (2001). ANALYSIS In his motion to return the minor child, petitioner cites, for authority, section 609 of the Marriage Act, which states: "Leave to Remove Children. (a) The court may grant leave, before or after judgment, to any party having custody of any minor child or 4 In re D.D., 196 Ill. 2d 405, 752 N.E.2d

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." (West 2008). Petitioner also cites, for authority, section 14(a)(1) of the Parentage Act, which states: "(a)(1) *** In determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act, including Section 609." ILCS 45/14(a)(1) (West 2008). Traci argues that neither applies to her. She claims that 750 750 ILCS 5/609

the trial court's order, mandating she return to Illinois with the minor child, is in effect an injunction that can only be entered after a hearing pursuant to section 13.5 of the Parentage Act. 750 ILCS 45/13.5 (West 2008). Section 13.5 states as

follows: "(a) In any action brought under this Act for the initial determination of custody or visitation of a child ***, the court, upon 5

application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin

removal of a child, the Court shall consider the following factors including, but not limited to: (1) the extent of previous involvement with the child by the party seeking to enjoin removal; (2) the likelihood that parentage will be established; and (3) the impact on the financial, physical, and emotional health of the party being enjoined from removing the child. * * * (c) Notwithstanding the provisions of subsection (a), the court may decline to enjoin a domestic violence victim having physical possession or custody of a child from temporarily or permanently removing 6

the child from Illinois pending the adjudication of the issues of custody and visitation." 750 ILCS 45/13.5 (West 2008).

Petitioner disagrees with Traci, arguing that, although it is found in the Marriage Act and the parties never married, section 609 was properly applied by the court as it is incorporated into the Parentage Act by section 14 of the Parentage Act. To support this contention, petitioner cites In

Fisher v. Waldrop, 221 Ill. 2d 102, 849 N.E.2d 334 (2006). Fisher, the mother and father of a minor never married. 221 Ill. 2d at 106.

Fisher,

They ended their relationship when the child

was approximately 2

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