NO. 4-01-0936

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Defendant Roger G. Melton (Roger) appeals from an orderof the circuit court of Macoupin County finding him in contempt forremoving his minor child, Nicholas Gifford (born June 26, 1999),from Illinois without prior approval of the court or the child'smother, plaintiff Rochelle Harbour (Rochelle). As a sanction,Roger was directed to pay Rochelle's attorney fees. Temporarycustody of Nicholas was awarded to Rochelle until Roger filed apetition for leave to remove and approval was granted by the courtor until Rochelle granted Roger written permission to remove thechild from the state. The issues on appeal are whether (1) thetrial court erred in applying section 609 of the Illinois Marriageand Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/609(West 2000)) when the underlying proceeding was brought pursuant tothe Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1through 27 (West 2000)) and (2) the transfer of temporary custodywas an improper sanction. We reverse.

The Illinois Department of Public Aid (Department)initiated the parentage action by filing a complaint on May 15,2000. On the stipulation of Roger and Rochelle, on June 6, 2000,the trial court entered an order finding Roger to be the naturalfather of Nicholas and awarding Roger custody subject to "reasonable rights of visitation in" Rochelle. The Department wasthereafter dismissed as a party.

On June 19, 2000, Rochelle filed a motion to vacate theorder on the ground that she believed she had stipulated only totemporary custody until she returned from South Carolina. On thesame date, she filed a petition for custody and a petition for ruleto show cause. On July 20, 2000, Roger filed a motion to strikethe pleadings because a motion to modify was the proper pleadingunder the Marriage Act. In addition, on July 31, 2000, Roger filedan alternative motion for temporary and permanent custody.

Following a hearing on August 10, 2000, the trial courtentered an order on August 17, 2000, vacating the previous order ofcustody, denying the motion to vacate as to paternity, denying themotion to strike the pleadings, awarding Roger temporary custody,and specifically setting the visitation of Rochelle during thetemporary custodial period. On June 4, 2001, the cause came beforethe trial court for hearing on the issues of custody and visitation, and the parties advised the trial court that they had reachedan agreement. On June 7, 2001, the trial court entered an agreedorder (1) granting Roger custody of Nicholas; (2) giving Rochellevisitation from 6 p.m. Friday through 6 p.m. Sunday on alternateweekends, as well as alternate holidays, with the parties directedto equally divide the Christmas holiday and with Rochelle alsohaving visitation on the child's birthday and on the Wednesday ofevery week from 5 p.m. to 8 p.m.; (3) directing that the order wasto be reviewed at the option of Rochelle in the event Roger becameseparated from his current wife; and (4) expressly reserving allother matters pertaining to the minor child.

On July 16, 2001, Rochelle filed a petition for a rulerequiring Roger to show cause why he should not be held in contemptof court because he changed his residence to 468 East Spencer,Cuba, Missouri, took the child with him, did not request leave ofcourt or the consent of Rochelle, and thereby adversely affectedRochelle's right to visitation. At the hearing conducted August13, 2001, Rochelle testified that, at the time the custodial orderwas entered, Roger lived in Litchfield with his wife and mother. Roger moved out of Illinois in late June or early July 2001. Henow lived with the child, his wife, his mother, his grandmother,and a friend of his mother. Roger told her that he moved toMissouri because he and his wife were having problems. Rochellewent to Missouri and stayed with Roger for a month beginning June29, 2001. She decided against staying in Missouri and getting backtogether with Roger, and she left Missouri about the end of July2001. She denied giving Roger permission to take the child toMissouri. The petition for rule to show cause was filed about oneweek after she returned from Missouri.

Roger testified that he, the child, his mother, hisgrandmother, and his mother's friend, Eva, lived at the residenceon East Spencer in Cuba, Missouri. He moved because he and hiswife were having marital problems and he had a better job offer. Prior to the move to Missouri, he had separated from his wife. Thejob offer was as a mechanic for "Out-Of-The-Way Auto." Hecontacted Rochelle, and she offered to go to Missouri with him. Roger felt it might be good for the child to have both parentstogether. Rochelle stayed for about one month. Roger's wife movedinto the home in Missouri about one week prior to the hearing. Roger had not filed a petition to dissolve his marriage or talkedto an attorney about that. Rochelle told him she went to Missouribecause she wanted to leave her home in Gillespie, Illinois, shedid not like Illinois, and she was having problems at home. Rochelle told him that her mother used crack. When Rochelle leftMissouri, she told him she was going to visit her mother for acouple of days. Her mother came to Missouri to pick her up.

Eva Moore testified that she lived in the same householdwith Roger. Rochelle told her that she wanted to get away from herfamily because her stepfather fondled her and she was sexuallymolested by her stepbrother, as was her younger brother.

Rochelle returned to testify that she lived with hermother, her stepfather, and her sister. She denied telling anyonethat her stepfather fondled or molested her or that her mother diddrugs. To her knowledge, her mother did not use drugs. Rochellecurrently held two jobs. She worked part-time, about 20 hours perweek, at Pizza Hut in Litchfield. She also had a full-time jobworking midnight shift at Wal-Mart. She started working at Wal-Mart three to four days prior to the hearing. She would beginworking the day shift on the weekends at Pizza Hut during the weekfollowing the hearing. At Wal-Mart, she would work from 9 p.m. to7 a.m., four days per week, alternating between weekdays for onemonth and weekends for one month. If she had custody of the child,during the day he would be in day care and during the night hersister or mother would baby-sit. Roger had never objected to hermother watching the child. Her mother and her sister also worked. Her sister's hours varied. Her mother's hours also varied, butgenerally she worked during the day and was home in the evening.

At the conclusion of the hearing, Rochelle's attorneyargued that, based on "the statute," Roger was not permitted toremove the child from Illinois without the court's permission orRochelle's permission. He did not argue that the court-orderedvisitation had been disrupted by the removal of the child toMissouri.

On August 21, 2001, the trial court entered an order (1)finding Roger in contempt of court for removing the child from thestate without permission of the court or Rochelle; (2) directingRoger to pay Rochelle's attorney fees; (3) granting temporarycustody of Nicholas to Rochelle until such time as Roger filed apetition to remove that was approved by the court or until Rochellegranted Roger permission to remove the child from Illinois; and (4)further providing that when Rochelle could not directly supervisethe child, she could place the child in the care and custody of hermother, Sharon Griffin, her sister Stephanie, or a licensed day-care provider. Although the order did not specifically set outRoger's rights to visitation, it stated "[n]othing in the paragraphshall be construed to prohibit reasonable and liberal visitation onthe part of the respondent."

On September 4, 2001, Roger filed a motion for rehearingor to vacate the contempt order. On September 20, 2001, the trialcourt denied the motion. In denying the motion, the trial courtexplained that its primary concern was the best interests of thechild. In deciding issues of custody and visitation, the courtconsidered the child's contacts with Illinois and with familymembers in Illinois, and in determining whether to authorizeremoval, the fact that visitation could be the same as beforeremoval was not controlling.

A trial court's finding a party in indirect civilcontempt will not be overturned on appeal unless it is against themanifest weight of the evidence. Busey Bank v. Salyards, 304 Ill.App. 3d 214, 217, 711 N.E.2d 10, 14 (1999). However, to the extentthis appeal raises an issue of statutory construction, that issuewill be considered de novo. In re Marriage of Kates, 198 Ill. 2d156, 163, 761 N.E.2d 153, 157 (2001).

Section 14(a)(1) of the Parentage Act, in relevant part,states, "In determining custody, joint custody, or visitation, thecourt shall apply the relevant standards" of the Marriage Act. 750ILCS 45/14(a)(1) (West 2000). It also expressly states that ajudgment in an action under the Parentage Act may provide for thecustody and guardianship of the child and visitation privilegeswith the child "which the court shall determine in accordance withthe relevant factors" set forth in the Marriage Act and theapplicable laws of Illinois to guide the court's determination ofthe child's best interests. 750 ILCS 45/14(a)(1) (West 2000).

Section 602(a) of the Marriage Act enumerates a set ofnonexclusive factors that the trial court is to consider indetermining custody in accordance with the best interests of thechild. 750 ILCS 5/602(a) (West 2000). See In re Marriage ofMartins, 269 Ill. App. 3d 380, 388-89, 645 N.E.2d 567, 573 (1995)(the statutory list of factors is not exclusive). The possibilityof a custodial parent removing a child from the state would be arelevant factor to consider in determining custody. However, theoriginal custodial order of the trial court, based on the agreementof the parties, granted custody of Nicholas to Roger withoutexpressly providing for the possibility of removal and did notexpressly require Roger to request permission from the court orfrom Rochelle to remove the child from Illinois. Had the court'sorder incorporated such a provision, the contempt powers of thecourt could be used to enforce that judgment. 750 ILCS 45/15(b)(West 2000).

Section 609(a) of the Marriage Act authorizes the courtto grant leave to remove the child from Illinois on petition by thecustodial parent, who has the burden of proving that removal is inthe child's best interests. 750 ILCS 5/609(a) (West 2000). Although removal from the state relates to custody and visitationand section 609 is included in part VI of the Marriage Act relatingto custody, reviewing courts that have considered the issue haveconsistently determined that section 609 is not incorporated byreference into the Parentage Act and does not apply to unmarriedparents. In re S.L., 327 Ill. App. 3d 1035, 1037, 765 N.E.2d 82,84 (2002); In re Adams, 324 Ill. App. 3d 177, 180, 754 N.E.2d 425,428 (2001); In re Parentage of Melton, 314 Ill. App. 3d 476, 481,732 N.E.2d 11, 15 (2000); In re Parentage of M.M.W., 296 Ill. App.3d 877, 883, 695 N.E.2d 1357, 1361 (1998); In re Parentage ofR.M.F., 275 Ill. App. 3d 43, 51-52, 655 N.E.2d 1137, 1143-44(1995). In Adams, the court concisely explained the rationale forthis conclusion as follows:

"Although the Parentage Act has adopted someof the provisions of the Marriage Act, it doesnot incorporate the entire Marriage Act anddoes not confer the same broad powers on thecourt. See Melton, 314 Ill. App. 3d at 478,732 N.E.2d at 13. The court has no inherentpowers in parentage cases, and the court'sauthority to hear parentage cases is limitedto the exercise of those powers that areexpressly given to it by the statute. See Inre Marriage of Cohn, 93 Ill. 2d 190, 443N.E.2d 541 (1982)." Adams, 324 Ill. App. 3dat 180, 754 N.E.2d at 428.

The courts deciding each of these cases have recognizedthat the custodial parent does not have an absolute right to removethe child from Illinois. In R.M.F., the court found that themodified visitation schedule was reasonable and upheld the court'sauthorization of the removal of the child even though section 609did not require a petition to remove be filed. R.M.F., 275 Ill.App. 3d at 52, 655 N.E.2d at 1144. In M.M.W., the court recognizedthat a disruption of visitation caused by removal of the childcould be a basis for a petition for modification of custody undersection 16 of the Parentage Act (750 ILCS 45/16 (West 2000)), whichincorporated the factors of section 610 of the Marriage Act (750ILCS 5/610 (West 2000)), or a petition to enforce visitation undersection 607.1 of the Marriage Act (750 ILCS 5/607.1 (West 2000)). M.M.W., 296 Ill. App. 3d at 883-85, 695 N.E.2d at 1361-62 (althoughthe court did not explain precisely how section 607.1 of theMarriage Act is incorporated into the Parentage Act). In Melton,the court required the custodial parent to seek modification ofvisitation prior to removing the child from the state. Melton, 314Ill. App. 3d at 482, 732 N.E.2d at 16. Adams also required thecustodial parent to seek to modify visitations if she could notcomply with the court-ordered visitation after removal of the childfrom the state. Adams, 324 Ill. App. 3d at 180, 754 N.E.2d at 428. In S.L., the court found that a decision to remove the minor fromIllinois to Florida demonstrated a change in circumstanceswarranting the court to consider modifying custody. S.L., 327 Ill.App. 3d at 1038-39, 765 N.E.2d at 85.

As noted, the analysis in M.M.W. suggests that adisruption of visitation by removal is an enforceable violation ofthe custodial order entered under the Parentage Act. M.M.W., 296Ill. App. 3d at 883-84, 695 N.E.2d at 1361. In the case at bar,although the petition for rule to show cause recited that visitation was adversely affected, no evidence of that was presented andno argument was made that removal of the child disrupted visitationin violation of the trial court's custody order. That argument hasalso not been made in this court. We deem Rochelle has abandonedthat argument.

Therefore, the finding of contempt is against themanifest weight of the evidence because (1) the trial court's orderawarding Roger custody did not require that he seek permission ofthe court or Rochelle before removing Nicholas from Illinois, (2)section 609 of the Marriage Act does not apply to this case, and(3) Rochelle has presented no evidence of a violation of thevisitation provisions of the trial court's order. Without evidenceof a disruption of visitation, we cannot say that Roger's removalof the child without first seeking modification of the court'sorder constituted contempt of court.

Rochelle argues that she is disadvantaged because section610(a) of the Marriage Act (750 ILCS 5/610(a) (West 2000)) requiresthat she wait two years to file a petition to modify custody. Herargument assumes that (1) the trial court did not retain jurisdiction of this question under the express reservation provision ofthe August 17, 2000, agreed custody order, (2) the trial court willconsider the removal of a child to a distant location from one ofhis parents would not seriously endanger the child's mental oremotional health, and (3) section 610(a) is incorporated into theParentage Act. Section 16 of the Parentage Act states thatmodification of custody or visitation "shall be in accordance withthe relevant factors specified" in the Marriage Act. 750 ILCS45/16 (West 2000). Applying the narrow statutory constructionanalysis previously utilized in these types of cases, the "factors"are set out in section 610(b) of the Marriage Act (750 ILCS5/610(b) (West 2000)). Section 610(a), which contains a limitationor condition precedent for instituting a modification proceedingunder the Marriage Act, may or may not apply to a modificationproceeding under the Parentage Act. We do not decide thatquestion.

Rochelle argues that the failure to recognize a requirement for permission to remove under the Parentage Act is discriminatory toward illegitimate children. This argument appears to bea challenge to the constitutionality of the statutory structure onthe basis that it violates principles of equal protection under thelaw. U.S. Const. amend. XIV; Ill. Const. 1970, art. I,