by Nanette A. McCarthy and Carol Jones

Originally published in Family Law, ISBA, January 2007, Vol. 50, No. 3

Removal in Parentage Cases

after Fisher v. Waldrop

Joan and Richard had one child—Samantha—during their relationship. When their relationship ended, they negotiated a shared custody arrangement, and that arrangement has worked relatively well. Joan has primary custody, and Richard has Samantha one night per week and on every other weekend. Joan struggled financially after the couple split. She managed to keep her sculpture gallery open, but had trouble making ends meet. About a year ago, Joan married Steve, who used to be a trader at the Chicago Board of Trade. The trading market collapsed, and he was unemployed for about two years. After extensive searching for work in Illinois, Steve finally looked out-of-state and ultimately obtained a financial services position in New York City. Steve began that job and moved to New York about six months ago. Although the family is more financially secure because of Steve's move, the distance is difficult on the couple's marriage. Joan recently announced that she is four months pregnant, and that she wants to move with Samantha to New York in order to join Steve.

What are Joan's rights with regard to moving Samantha from Illinois to New York? What, if anything, must Richard do to stop her? Who must do the asking, and who must do the proving? . . .

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Joan and Richard had one child—Samantha—during their relationship. When their relationship ended, they negotiated a shared custody arrangement, and that arrangement has worked relatively well. Joan has primary custody, and Richard has Samantha one night per week and on every other weekend. Joan struggled financially after the couple split. She managed to keep her sculpture gallery open, but had trouble making ends meet. About a year ago, Joan married Steve, who used to be a trader at the Chicago Board of Trade. The trading market collapsed, and he was unemployed for about two years. After extensive searching for work in Illinois, Steve finally looked out-of-state and ultimately obtained a financial services position in New York City. Steve began that job and moved to New York about six months ago. Although the family is more financially secure because of Steve's move, the distance is difficult on the couple's marriage. Joan recently announced that she is four months pregnant, and that she wants to move with Samantha to New York in order to join Steve.

What are Joan's rights with regard to moving Samantha from Illinois to New York? What, if anything, must Richard do to stop her? Who must do the asking, and who must do the proving?

Before the Amendments to the Illinois Parentage Act

Interestingly, it used to matter whether the couple was married. Prior to 2003, the Parentage Act did not address the removal of children from Illinois but the Marriage Act did address the issue. Section 609 of the Marriage Act provided that a custodial parent must first ask for leave to remove a child from the state, and that the custodial parent had the burden to prove that such removal would be in the child's best interests. 750 ILCS 5/609(a). Also under the Marriage Act, a non-custodial parent has the right to request an injunction against removal of the child from the jurisdiction of the court. 750 ILCS 5/501(a)(2)(ii). These express provisions governing removal in the Marriage Act were not included in the Parentage Act, however, and because the Parentage Act made no reference to them, Illinois courts declined to apply these processes in Parentage Act cases. See Fisher v. Waldrop, 221 Ill.2d 102, 113, 849 N.E.2d 334, 302 Ill.Dec. 542(2006) (discussing courts' refusal to extend the provisions of the Marriage Act to the Parentage Act absent statutory authority). As a result, there was no statutory process governing removal under the Parentage Act.

After the Amendments to the Parentage Act

In 2003 the Illinois General Assembly amended the Parentage Act to include the removal provisions of the Marriage Act. The Parentage Act now requires that "[i]n determining custody, removal, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act, including Section 609."(Emphasis added). 750 ILCS 45/14. The amendments further provided that the court has continuing jurisdiction to modify judgments with regard to removal "in accordance with the relevant factors specified" in the Marriage act. 750 ILCS 45/16. The Marriage Act itself provides that a court "may grant leave" to a custodial parent seeking to remove a child from the state. 750 ILCS 5/609(a). The clear implication in a parentage case now is that a custodial parent must ask the court for permission to remove a child from the state, and the custodial parent bears the burden of proving that such removal is in the child's best interests. See Fisher v. Waldrop 221 Ill.2d at 116-117; see also 750 ILCS 5/609(a) (West 2004).

A final amendment to the Parentage Act added a provision directing that a court "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." 750 ILCS 45/13.5(a). Thus according to the plain language of the Parentage Act, a non-custodial parent now has the right to seek an injunction against removal until the court rules on whether removal will be permitted. Fisher v. Waldrop 221 Ill.2d at 117.

Recently, the Illinois Supreme Court confirmed that the plain language of these amendments, which incorporate the dictates of the Marriage Act, would control the process by which a parent may remove a child from Illinois where the parents had never been married. The Court in Fisher v. Waldrop held that the Parentage Act now specifically incorporates the dictates of section 609 of the Marriage Act for purposes of determining whether to allow removal. At the trial level in Fisher, some confusion existed because the non-custodial parent (dad) initially filed a petition under Section 13.5 of the Paternity Act to enjoin the removal of his daughter from Illinois. This happened after mom stated she wanted to move to Indiana with her new husband. After dad filed his petition, mom filed a petition for removal and then a week later dismissed it assuming the burden of proof fell on dad. The case proceeded to trial under that assumption. The Supreme Court in Fisher reversed the trial court and held that under the amended Parentage Act, a custodial parent must request leave to remove a child and bears the burden of proving that the removal is in the child's best interest. Fisher v. Waldrop at 11-12.

Why the Court Got it Right

The Fisher court's conclusions avoided a ridiculous result. The Fisher appellant (mother) forged a convoluted argument in order to give some meaning to the Parentage Act amendments without reaching a result that required her to request leave to remove her daughter from Illinois. In order to give effect to the injunctive relief specified in Section 13.5, the mother argued that a custodial parent may remove a child unless the non-custodial parent files for an injunction against removal. Then if an injunction is requested, according to Appellant, the non-custodial parent must prove the removal is not in the child's best interests. Not only is this process convoluted, but it is contrary to the express statutory provisions discussed above, as well as the general logic of the statutory scheme.

The mother also argued that the determination of an injunction and the merits of removal should be contained in one proceeding as a matter of efficiency. Otherwise, she argued, the court would have one comprehensive hearing on the injunction and another comprehensive hearing on whether removal was in the child's best interests. She argued that such duplicative proceedings were unnecessary because the hearings involved essentially the same analysis. As the Illinois Supreme Court explained, however, the analyses are distinct. The injunction hearing addresses the parties' rights pending the outcome of the merits hearing, and the determination is made based primarily on the parents' circumstances: how much the parent seeking injunction has been involved with the child, whether parentage is likely to be established, and the impact on the parent enjoined from removing the child. see 750 ILCS 45/13.5. The hearing, in contrast, is focused only on the best interest of the child.

Although mother contended that the Parentage Act's amendments create a duplicative process, her attack really was an attack on preliminary injunctions in general. Preliminary injunctions serve to protect the parties' interest pending the outcome of a merits hearing. In cases involving rights such as custody, the time taken to gather discovery, conduct a hearing and issue an opinion threatens to irreparably harm a party unless the status quo is maintained during that time. And, although there is some duplication in terms of evidence, that duplication is deemed essential in order to protect the greater good of the parties' interests and not allow the process itself to change the parties' rights and relationships. Further, the Supreme Court decision implies that the preliminary injunction process may be applied in pre-and post-judgment cases (although this issue was disputed by the dissenting opinion). Without such a provision, a post-decree non-custodial parent would be left with a contempt proceeding where a custodial parent is planning to leave the state, regardless of whether the parties' judgment addresses the issue or not.

In sum, the Fisher court merely affirms the plain language and application of Section 609 to the Parentage Act following the 2003 amendments. Further, the Supreme Court affirmed that Section 13.5 of the Parentage Act is merely a separate tool to maintain the status quo pending a decision on the merits of the case. Removing a child from Illinois must be sought according to one statutory process, whether the parents were married (and therefore are governed by the Marriage Act) or not (and therefore are governed by the Parentage Act). In either case, the custodial parent must seek leave of the Court to remove the child, and bears the burden of proving that removal is in the child's best interest. In addition, no matter the couple's marital history, the non-custodial parent may stop the custodial parent from removing the child during the pendency of the removal proceedings by seeking an injunction.