NO. 4-04-0863

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

Plaintiff, Vincent R. Fisher, appeals the trial court'sorder denying his petition for permanent injunction and grantingpermission to defendant, Jill L. Waldrop, to remove the parties'child from the State of Illinois. We reverse and remand withdirections 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, Vincentfiled a petition to establish a parent-child relationship and apetition to establish custody, visitation, and child support, allpursuant 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 theparties that Vincent was the father of Callie. The court awardedexclusive custody to Jill and granted liberal visitation toVincent, which included alternating weekends and overnight visitsevery Thursday.

On July 5, 2003, Jill married Christopher Kitzke andmoved to Williamsville, Illinois. In October 2003, Kitzkeobtained 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 andCallie remained in Springfield and lived with Jill's parents.

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

On December 31, 2003, Jill filed a petition for leaveto remove Callie from Illinois. On January 7, 2004, Jill filed amotion to dismiss her petition for leave to remove, claimingsection 13.5 of the Parentage Act (750 ILCS 45/13.5 (West Supp.2003)) governed petitions for removal in paternity cases and itwas Vincent's burden to show that an injunction was appropriate. The trial court allowed the withdrawal of the petition in June2004.

On March 26, 2004, the trial court granted Vincent'spetition for evaluation and appointed Dr. Brian Heatherton, aclinical psychologist, to evaluate the impact of potentialrelocation on the relationship of Vincent with Callie. In June2004, 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. Thereport and testimony indicated that Dr. Heatherton met withCallie, Vincent, and Jill individually and also observed eachparent alone with Callie. He was unable, however, to observeCallie with her stepfather, Kitzke, because she did not wish todo so. Dr. Heatherton did, however, interview Kitzke and notedKitzke's comment that "if we are coming together as a family,[Vincent] is going to have [to] sacrifice his relationship withCallie."

Dr. Heatherton interviewed numerous other individuals,including Callie's maternal grandmother, Beverely Waldrop,kindergarten teacher, Peggy Shanle, and Daisy Scout leader, AmberCalvert. Dr. Heatherton interviewed Matt Swenny, a licensedclinical professional counselor, who provided individual andfamily counseling to Callie and her mother for approximately oneyear due to Jill's concerns about Callie's behavior. He alsointerviewed Dr. Helen Appleton, a licensed clinical psychologist,who saw Callie when she was 3 1/2 years old because of Jill'sconcerns 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 livewith one parent: individual risk and vulnerability, parentallevel of distress, stress and socioeconomic disadvantage, familyprocess, and change of family composition. Dr. Heatherton foundCallie to be well-adjusted. He did have a concern, however, withKitzke's instability in that he had many employment transitions. He also noted a risk factor to Callie's relationship with herfather, namely, that fathers who lose visitation over time aremarginalized and tend to drift away, which causes the child toexperience loss.

One of Dr. Heatherton's biggest concerns was with thepoor relationship between Vincent and Jill. He noted that howwell the parents get along is a big predictor in the father-and-child relationship. For the move to be successful, Vincent wouldhave to be informed of Callie's every success and failure, andVincent must be given an opportunity to articulate his opinionregarding Callie's education, extracurricular activity, anddiscipline. Vincent would have to provide the same type ofinformation to Jill when Callie visited him. The lack of communication between Vincent and Jill would affect Callie's abilityto adjust to her new surroundings. Dr. Heatherton concluded thisfactor would have a significant negative effect on Callie'srelationship with her parents should she move to Indiana.

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

Dr. Heatherton acknowledged that remarriage oftenalleviates economic problems experienced by custodial parents indivorce. However, other stressors are associated with remarriageand relocation. Because Jill and Kitzke could expect someadjustment difficulties due to their employment, this wouldaffect their relationship with Callie. He further noted thattransportation and employment demands would affect Jill's abilityto transport Callie and thereby affect Callie's visitation withher father. In fact, one such problem had already occurred. Kitzke informed Dr. Heatherton that he planned to leave work forSpringfield on April 16, 2004, at noon but a crisis kept himthere until 7 p.m.

Dr. Heatherton noted that Callie was very attached toboth her mother and father. He expressed concerns that Kitzkecommented that he did not have his own children, although suchstatement is not uncommon by a stepparent. Dr. Heathertonconcluded that Kitzke's view of Callie will play a part in thedegree to which he becomes attached to her and will, in turn,affect Callie's adjustment.

Dr. Heatherton's report did not issue a recommendationof 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. Heathertonstated that the move would have a "significant effect" onVincent's relationship with Callie. At trial, he stated thatthis "significant effect" would be negative.

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

Vincent described some of the problems he and Jill hadexperienced. Vincent claimed that Jill only occasionally gavehim information concerning Callie's school, such that Vincent hadto contact Callie's teacher directly to get information. He andJill communicated mostly by notes in Callie's backpack. Jill didnot tell Vincent that she placed Callie in therapy with Swennyuntil a month after doing so. According to Vincent, Jill occasionally interfered with his telephone calls with Callie or wouldnot be home during his scheduled time to call. Jill also allegedly scheduled activities for Callie during Vincent's visitationtime.

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 forvisitation. Also, the move would not only affect Vincent'srelationship with Callie but would affect Callie's relationshipwith her extended family members, including Vincent's sister andbrother-in-law (and their children) in New Berlin, Illinois;Vincent's mother in Fairfield, Illinois; Vincent's grandmother inCharleston, Illinois; and Jill's parents in Springfield. Vincentexpected Callie would participate in athletic activities inschool. He expressed concern that he would rarely be able toattend these events and that the activities would affect hisvisitation. Vincent's sister and mother also testified as totheir relationship with Callie and Vincent's "exceptional"relationship with Callie.

Jill testified at the hearing as an adverse witnessduring Vincent's case and on her own behalf. Jill owned her owncrafting business, which she described as a very flexible job. She believed that flexibility would continue in Indiana.

Jill admitted that Callie and Vincent had a lovingrelationship. While she acknowledged that the move would affectthat relationship, she did not think it would be adverse depending upon the quality of the time Vincent and Callie spent together. She denied not providing information to Vincent.

Jill admitted neither she nor Kitzke had extendedfamily in Indiana. She had not yet decided which school Calliewould attend if Callie moved to Indiana. Jill did not consultwith Vincent on the issue of Callie's schooling, despite beingrequired to do so by the court's custody order.

Jill described the cultural activities available inRichmond and the house in which they would live. According toJill, not moving would have a negative impact because she couldnot afford to live in Illinois while her husband lived in Indiana. Although she currently lived with her parents, she couldnot do so long term. Living apart from her husband was difficulton their relationship. In addition, Jill was pregnant and due togive birth in December 2004.

Jill believed the move would benefit Callie becausethey would be together as a family and be more financially sound. She proposed visitation of every third weekend, including anylong holiday weekends, every school holiday, division of Christmas, alternative Thanksgivings, and 7 1/2 weeks in the summer. She agreed to mail school information to Vincent, videotapeschool activities, and establish an e-mail account for Callie.

Kitzke testified that he had a bachelor of arts degreefrom the University of Notre Dame in government internationalrelations. He was currently employed by Auto Car Corporation asa quality manager and earned $60,000 a year. Prior to acceptingthe employment with Auto Car Corporation in October 2003, Kitzkehad been unemployed for six months. His previous employment wasas the quality manager for Blue Bird Wanderlodge, a company thatbuilds motor homes, in Fort Valley, Georgia. He had worked inwhat he described as the "quality profession" for almost 15years. He also described his unsuccessful efforts to findemployment in Illinois.

According to Kitzke, he had a good relationship withCallie. He testified that the impact on him if Callie was notallowed to move to Indiana would be that he would feel unable toprovide for his wife and Callie and that it would cause anemotional and financial strain on his relationship with Jill.

Swenny testified on Jill's behalf. He initially sawCallie in March 2003 at Jill's request for behavior problems. Hemet with Vincent once, at Vincent's request, because Vincentwanted to know what Swenny was doing in therapy with Callie. Vincent did not report the same level of problems with Callie asreported by Jill. Swenny saw Callie approximately weekly untilJanuary 2004 and then again in March 2004 because Jill wasworried about how these proceedings would affect Callie.

Swenny concluded that Callie seemed able to handle newsituations better than typical children her age. He expressedthe opinion that it would not be negative for Callie to move. Oncross-examination, he admitted that he could not give an opinionas to how the move would affect Callie and Vincent's relationshipbecause he did not know anything about Vincent. He also admittednever having met with Kitzke.

On July 1, 2004, the trial court entered its order onthe petition for permanent injunction. In its order, the courtexpressly found that section 13.5 of the Parentage Act (750 ILCS45/13.5 (West Supp. 2003)) required Vincent to establish, by apreponderance of the evidence, that removal of Callie was not inher best interests. After reviewing the evidence, the court heldas follows:

"If the court were only to consider what isin the best interests of Callie Fisher, thecourt would conclude that it is not in thebest interests of Callie that she be removedfrom the State of Illinois. The move fromSpringfield, Illinois[,] to Richmond, Indiana[,] will separate Callie from a parentwith whom she has a close, loving relationship; she will be removed from the home inwhich she has been raised since shortly afterher birth; her contact with her extendedfamily, with whom she has a close relationship, will be substantially curtailed; shewill move to a location where she has noextended family or friends; she will be subjected to a difficult commute in order tovisit her father and other extended familymembers; she is moving to a community thatdoes not have the resources that Springfieldhas; and strained communications between twoparents (which the court attributes to eachparent) will become almost impossible. Thecourt also has substantial concern about howCallie will be cared for in Richmond when[Jill] is away from home for her craftshows[,] which are her livelihood. The courthas substantial concerns about the nature ofthe relationship between Callie and Mr.Kitzke. By virtue of this [o]rder[,] Calliewill have to go through a period of adjustment with a new step[]parent in her home aswell [as] a period of adjustment to a newcommunity, in a new school, meeting newfriends, all of which will have to be accomplished without her father or her extendedfamily with whom she is very close and onwhom she relies for emotional support. *** It is a finding of this court that one ofJill's motives to marry and move away fromSpringfield was to separate herself from[Vincent]. This court also finds [Vincent]is partly responsible for this result basedupon his conduct towards Jill."

The court further found that the opinions expressed by Dr.Heatherton were valid and rejected the opinions expressed bySwenny, as his were reached without knowing anything aboutVincent and knowing little about Kitzke and based on Callie'sexcitement about a new house immediately after visiting Richmond. Nonetheless, the court found that the indirect benefits to Callierequired a denial of the injunctive relief. Specific benefitsincluded Kitzke holding a well-paying job in Indiana and Jill'spregnancy. The court expressed concern that if the injunctionwere granted, the baby would be separated from his/her father. The court believed this benefit to Jill would indirectly benefitCallie and was sufficient to warrant a denial of Vincent'srequest for injunctive relief. The court allowed removal and seta visitation schedule.

On Vincent's motion to reconsider, the trial courtreiterated its belief that the move was not in Callie's bestinterests but that the court was required to consider the indirect benefit to Callie through Jill. In denying the motion toreconsider, the court recognized those indirect benefits as Jillbeing able to live with her husband and that Jill's financialcircumstances would improve. This appeal followed.

II. ANALYSIS

Vincent raises two issues on appeal. First, he arguesthat the trial court erred by denying his petition for permanentinjunction, improperly placing on Vincent the burden of proof toestablish that removal was not in Callie's best interests ratherthan applying the injunction standard, and by going beyond theissue before it and permitting removal. Second, Vincent arguesthat even if the court properly considered the removal issue, theevidence established it was not in Callie's best interests to beremoved from Illinois. Although Jill did not file a brief withthis court, the claimed error is such that we can decide thisappeal on the merits without the aid of Jill's appellee brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp.,63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

In cases where the parents of a child were married,section 609(a) of the Illinois Marriage and Dissolution ofMarriage Act (Marriage Act) (750 ILCS 5/101 through 802 (West2002)) authorizes the trial court to grant leave to a custodialparent to remove the child from the state:

"(a) The court may grant leave, beforeor after judgment, to any party having custody of any minor child or children to removesuch child or children from Illinois wheneversuch approval is in the best interests ofsuch child or children. The burden of proving that such removal is in the best interests of such child or children is on theparty seeking the removal." 750 ILCS5/609(a) (West 2002).

Prior to 2003, the Parentage Act did not incorporate section 609of the Marriage Act, and therefore, such provision did not applyto unmarried parents. Harbour v. Melton, 333 Ill. App. 3d 124,129, 775 N.E.2d 291, 294-95 (2002); see also In re Parentage ofR.M.F., 275 Ill. App. 3d 43, 50, 655 N.E.2d 1137, 1142 (1995)(holding that "[b]ecause the Parentage Act contains no provisionsrequiring that actions for removal be resolved pursuant tosection 609 of the Marriage Act, we find that section 609 of theMarriage Act is not implicitly incorporated into the ParentageAct"). Instead, the noncustodial parent could petition formodification of custody or visitation, which would require abest-interests analysis pursuant to section 602 of the MarriageAct (750 ILCS 5/602 (West 2002)). R.M.F., 275 Ill. App. 2d at50-51, 655 N.E.2d at 1143-44.

In 2003, the legislature amended the Parentage Act tospecifically address removal. Pub. Act 93-139,