Ford v. Marteness

NO. 4-06-0065 Filed 10/27/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DESIREE FORD, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Livingston County
STEVEN MARTENESS, ) No. 00F6
Defendant-Appellee. )
) Honorable
) Robert M. Travers,
) Judge Presiding.
_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

Plaintiff, Desiree Ford, mother and custodial parent of

Noah Ford, pursuant to section 14 of the Illinois Parentage Act

of 1984, filed a petition in the Livingston County circuit court

seeking to remove Noah from the State of Illinois to Colorado due

to her pending marriage with Anton Giacometti. 750 ILCS 45/14

(West 2004). Defendant, Steven Marteness, Noah's father, filed a

petition requesting the trial court deny removal. In December

2005, the trial court denied the removal petition. This appeal

followed. We reverse and remand with directions.

I. BACKGROUND

Noah Ford was born on August 25, 1999. His parents,

Desiree, 27 years old, and Steven, 48 years old, have never been

married to each other and never lived together.

Desiree is seeking removal so she can move Noah to

Colorado to live with Giacometti. Desiree and Giacometti were
engaged to be married on March 17, 2006. At the time of trial,

Desiree lived with her parents in Dwight, sharing a bedroom with

Noah. She was employed as a bartender and worked three nights a

week. Her average income was $300 per week.

Steven lives in Peoria. At the time Desiree became

pregnant, he lived in Joliet but moved shortly after the

pregnancy. When Desiree first told Steven she was pregnant,

Steven suggested she have an abortion. Whatever relationship the

two had effectively ended at this point. Steven moved to Peoria.

He did not contact Desiree during the pregnancy and was not

present when Noah was born. He did not see Noah until three to

four months after Noah's birth, after Desiree initiated contact.

Steven has another child and pays child support for

that child. After his child-support payments, Steven earns

approximately $30,000 per year. He is entitled to visitation

with Noah from 7 p.m. Friday evening until 7 p.m. Sunday evening

on alternating weekends. In practice, however, Steven has Noah

from noon on Saturday until 6 p.m Sunday. Other than this

visitation, Steven and Noah have little other contact.

Desiree's fiancé at the time of trial, Giacometti, lives in

Greeley, Colorado. Greeley is approximately 45 miles north of

Denver. He is 36 years old and has never been married. He is

employed as an assistant pressman at R.R. Donnelley and earns

between the mid 40's to $50,000 per year. Giacometti has been

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employed at Donnelley's for 15 years, earning promotions through-

out the years. In 1999, Giacometti purchased a two-bedroom,

1,600-square-foot home in an area of Greeley, where property

values have been increasing. He has a good relationship with

Noah and has taken him fishing and to baseball games, and he

plays video games with him.

Upon moving, Desiree intends to quit her job as a

bartender and attempt to obtain employment in Greeley. She

stated she did not want to bartend anymore and instead would look

for a daytime job. She is very close with her parents. She has

lived with them most of her life. During trips to Illinois to

visit her parents, Desiree has stated she would contact Steven so

he could visit Noah. She has stated Noah could fly from Denver

to Chicago to visit Steven for extended periods during the summer

and Christmas. Giacometti testified he had no problem with

Steven visiting Noah in Colorado.

The trial court made a determination of the best

interests of the child based on these facts. After weighing the

factors outlined in In re Marriage of Eckert, 119 Ill. 2d 316,

329-30, 518 N.E.2d 1041, 1046-47 (1988), the court determined

removal was not in Noah's best interests and denied Desiree's

petition. Desiree appeals.

II. ANALYSIS

In removal cases where the custodial parent and

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noncustodial parent were never married, the Illinois Parentage

Act states a court is to apply section 609 of the Illinois

Marriage and Dissolution of Marriage Act (750 ILCS 5/609 (West

2004)). Fisher v. Waldrop, 221 Ill. 2d 102, 114, 849 N.E.2d 334,

341 (2006). When a party with custody of a minor child seeks to

remove the child from Illinois, it is incumbent upon the party

seeking removal to prove removal is in the best interest of the

child, considering the impact on visitation, as well as other

relevant factors. 750 ILCS 5/609(a) (West 2004). The custodial

parent has the burden to establish that the move would be in the

child's best interest. Eckert, 119 Ill. 2d at 329-30, 518 N.E.2d

at 1046-47. "A trial court's determination of what is in the

best interests of the child should not be reversed unless it is

clearly against the manifest weight of the evidence and it

appears that a manifest injustice has occurred." Eckert, 119

Ill. 2d at 328, 518 N.E.2d at 1046.

In deciding whether removal is in a child's best

interest, the trial court should hear all relevant evidence.

There is no "simple bright-line test," but determinations must be

made on a case-by-case basis depending on the circumstances of

each case. Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045. The

supreme court has suggested five factors that may aid a trial

court. The trial court should consider (1) the proposed move in

terms of likelihood for enhancing the general quality of life for

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both the custodial parent and the children; (2) the motives of

the custodial parent in seeking the move to determine whether the

removal is merely a ruse intended to defeat or frustrate visita-

tion; (3) the motives of the noncustodial parent resisting the

removal; (4) the visitation rights of the noncustodial parent;

and (5) if a realistic and reasonable visitation schedule can be

reached. Eckert, 119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.

No one factor is controlling. The Eckert factors are

to be considered and balanced by the trial court when making its

determination, "'and the weight to be given each factor will vary

according to the facts of each case.'" In re Marriage of

Collingbourne, 204 Ill. 2d 498, 523, 791 N.E.2d 532, 546 (2003),

quoting In re Marriage of Smith, 172 Ill. 2d 312, 321, 665 N.E.2d

1209, 1213 (1996).

The trial court found the move would enhance the

quality of Desiree's life. She would be living with her husband

and son in a 1,600-square-foot home in Greeley, Colorado. Her

husband would be supplying financial support. The court found no

further benefit for the move to Greeley, Colorado, because

nothing was introduced into evidence about crime rates, test

scores, and schools. The court found the only increase in

quality of life for the child would be that he would be with his

mother.

The trial court found Desiree's removal motive was not

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a ruse but a genuine desire to move based on Desiree's love for

her fiancé. The court also found Steven's motive for resisting

removal was not in bad faith but to only maintain contact.

In addressing Steven's visitation rights, the trial

court discussed the testimony that Steven was a less-than-

enthusiastic parent, noting "[p]arenting styles differ." The

court then found Steven was not "a reluctant parent."

When considering whether a reasonable visitation

schedule could be reached if the move is allowed, the trial court

found removal would make visitation difficult. The court stated

when setting up visitation, the goal should be for the child to

have frequent contact with both parents. The court noted Steven

does not have great financial resources, and Desiree would be

quitting her job as a bartender, which she worked three night a

week, when she moved. Based on these facts, the court found the

parties would have difficulty affording the transportation

necessary for Steven to exercise his visitation rights.

The trial court also found significant the fact the

child would be removed from both his maternal and paternal

grandparents as well as his father. The trial court weighed the

factors and determined that removal to Colorado was not in the

best interest of the child and denied removal.

Removal cases are difficult. This is especially so

when neither parent demonstrates bad faith. Therefore, an

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appellate court presumes the result reached by the trial court is

strong and compelling in this type of case. Collingbourne, 204

Ill. 2d at 522, 791 N.E.2d at 545. However, in this case we find

the trial court's denial of removal was against the manifest

weight of the evidence and reverse.

In considering the benefit the move would have on

Desiree, the trial court found she would be able to live with a

man she loves, who would provide financial support, and live in a

1,600-square-foot home. However, the benefits as supported by

testimony are much greater.

Desiree is 27 years old, lives with her parents and

son, and works three nights a week making approximately $100 a

night. By moving to Colorado, she will be able to live with her

husband. This will be a significant improvement in her life.

The testimony suggests Giacometti will be a good husband. He has

worked for the same company for over 15 years, earning promo-

tions. He makes a respectable living and owns a home in an area

where property values are rising. He works traditional hours,

which will enable him to spend time with Desiree and her son.

Desiree testified she would seek employment in Colorado, but not

as a bartender. She wants to work during the day. There is no

evidence of what employment she would seek, but it is certainly

conceivable she would be able to earn an income similar to her

present income. If she works during the day, that would allow

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for three extra nights a week she would have to spend with her

son. She will also have a home of her own and will no longer be

required by economic constraints or comfort to live with her

parents.

The prospects for the enhancement of the child's life

were understated. The trial court found only that he would be

happier with his mother. However, the child will experience

benefits with the increase in his mother's quality of life.

"'The best interests of children cannot be fully understood

without also considering the best interests of the custodial

parent.'" Collingbourne, 204 Ill. 2d at 528, 791 N.E.2d at 548,

quoting In re Marriage of Eaton, 269 Ill. App. 3d 507, 515-16,

646 N.E.2d 635, 642 (1995).

These are not indirect benefits. Noah will be the

direct beneficiary of economic security and more time with his

mother. Testimony suggested Giacometti has been active in the

child's life. Giacometti has taken the child fishing and to

baseball games in St. Louis and Colorado, has played video games

with him, and has talked to the child on the phone when he calls

Desiree. In Colorado, the child would have his own bedroom, as

opposed to now where he shares a room with his mother. No

compelling evidence was presented that the schools in Greeley are

better than in Dwight; however, nothing indicates the schools are

worse either. By moving, Noah will be living in a home with two

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adults in a loving relationship, likely with two incomes. He

would have his own room, which will allow him privacy.

Giacometti appears to have the child's best interest in mind.

This is an increase in the quality of the child's life that

should have been considered by the trial court.

In conducting a best-interests inquiry, the trial

court must "'consider the proposed move in terms of likelihood

for enhancing the general quality of life for both the custodial

parent and the children.'" (Emphases in original.)

Collingbourne, 204 Ill. 2d at 525, 791 N.E.2d at 547, quoting

Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1041. Courts should

consider the potential of the move for increasing the general

quality of life for both the custodial parent and the child,

including any benefit the child may experience from the parent's

life enhancement. Collingbourne, 204 Ill. 2d at 525, 791 N.E.2d

at 547. Desiree's quality of life will be significantly enhanced

by the move to Colorado. There is a nexus between the well-being

of the custodial parent and the child who is in that parent's

care that must be considered by the trial court when making its

determination. Collingbourne, 204 Ill. 2d at 526, 791 N.E.2d at

547. The trial court did not give the increase in Desiree's

quality of life the appropriate weight it deserved. While the

trial court was thoughtful and conscientious in listening to the

evidence and rendering a decision, we conclude the direct bene-

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fits to Noah were not fully considered. We find the trial

court's determination was against the manifest weight of the

evidence.

In determining the second and third factors dealing

with the motive of the parents, the trial court found no bad

faith on the part of either party. The record supports this

interpretation.

Pursuant to the fourth factor, the visitation rights of

the noncustodial parent must be considered, as it is in the best

interest of the child to have a healthy relationship with both

parents and other family members. The trial court is to deter-

mine if a reasonable visitation schedule could be reached. A

reasonable visitation schedule is one that "'will preserve and

foster the child's relationship with the noncustodial parent.'"

Collingbourne, 204 Ill. 2d at 523, 791 N.E.2d at 545, quoting

Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1041.

The trial court found the proposed Christmas and summer

visits, as well as visits when Desiree returned to Illinois with

the child, would not foster the child's relationship with Steven.

The court reasoned such visits would be a reduction in the

quality of Steven's current visits because of the lack of fre-

quent contact. However, if removal is denied every time a

noncustodial parent's visitation would be modified to less

frequent but longer periods, removal would likely only be granted

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in two unique situations. The first would be when both parents

live on the Illinois border and the custodial parent seeks

removal to move across the border. For example, when the parents

both live in Quincy and the custodial parent wants to move to

Hannibal, Missouri. The other situation would be when parents

possess significant wealth and few time restraints that would

allow for frequent travel.

This interpretation is against the intent of the

General Assembly, which allowed removal from Illinois upon a

proper showing the move is in the child's best interest. 750

ILCS 5/609(a) (West 2004). A court has no power to require

noncustodial parents and extended family to remain in Illinois.

Thus, "'some deference is due to the custodial parent who has

already determined the best interests of her child[] and herself

are served by'" marriage and removal. (Emphasis in original.)

Collingbourne, 204 Ill. 2d at 528, 791 N.E.2d at 548, quoting

Eaton, 269 Ill. App. 3d at 515-516, 646 N.E.2d at 642.

While the noncustodial parent would ideally be able to

see his or her child on a frequent basis, that is not always

possible. However, if a realistic and reasonable visitation

schedule can be reached, the trial court should take that into

consideration. The record shows Desiree has made significant

steps to ensure Steven is in the child's life. Steven did not

have contact with the child until Desiree initiated contact.

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Desiree testified she would be willing to set up a webcam for the

child and Steven to communicate. She also stated she is close to

her parents, as evidenced by the fact she has lived with them

most of her life, and would be visiting Illinois often. Desiree

stated she would contact Steven to set up visitation with the

child on such trips. Desiree stated she would allow the child to

visit Steven during Christmas and summer for extended periods.

Giacometti expressed willingness for Steven to visit Colorado

when Steven would choose. Further, in this day of inexpensive

telephone communication, Steven would not be financially burdened

to call the child, and nothing in the record indicates such a

call would not be welcomed. There is a high probability a

realistic and reasonable visitation schedule can be reached.

The trial court also found the limited finances of the

parties would prohibit a realistic and reasonable visitation

schedule. After paying child support for two children, Steven

earns a gross income of approximately $30,000. Also, Desiree has

limited resources and now intends to quit her job. The distance

between Colorado and Illinois requires significant expense,

whether Steven travels to Colorado or the child travels to

Illinois. The court found this fact would prevent the

preservation and fostering of the relationship between Steven and

his son.

Certainly it is proper to consider the finances of the

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parents when making a removal decision; however, denying removal

because of the cost of travel would allow only the affluent to

successfully petition the court to remove. The record does not

support the position the parties would not be able to afford the

travel. Desiree traveled to Colorado five times from March 2005

to December 2005. This indicates her financial resources do not

prohibit travel. While Desiree indicated she would stop

bartending, she also stated she was going to seek employment.

Desiree would likely be able to find employment with a similar

income of $300 a week. Also, she will be married to a man who

makes a respectable income. Therefore, the record establishes

Desiree will be at least as, if not more, able to provide trans-

portation for her son to travel to Illinois.

Steven's situation is not as clear. Saved gasoline

expenditures that would have arisen from the round-trip from

Peoria to Dwight twice a weekend, twice a month, should help

offset the burden of his share of travel costs. However, Ste-

ven's costs will likely increase. Such a result is unfortunate,

but the interests of the custodial parent should not be automati-

cally subordinated to the interests of the noncustodial parent in

removal cases. Collingbourne, 204 Ill. 2d at 528, 791 N.E.2d at

548. Perhaps an agreement could be reached requiring Steven to

pay half or less than half of any of the child's travel cost.

However, Steven's financial position should not force Desiree to

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choose between giving up custody of her son or giving up a life

with the man she loves and providing a fuller family life for

Noah.

Finally, the trial court considered the effect the

removal would have on the child's contact with his grandparents.

That is a valid consideration but when weighed against the other

factors should not prevent removal. Desiree's parents did not

testify. Desiree would visit them in Illinois often and indi-

cated they have a close relationship. This suggests Noah would

continue to have significant contact with them. Noah's paternal

grandparents had contact with Noah only when he visited with

Steven. That modest contact could continue after removal. The

record does not show Noah will be disadvantaged or harmed by a

change in contact with his grandparents so as to make that a

determinative factor.

The increase in the quality of life to Desiree and the

child will be significant. The trial court did not evaluate and

weigh those factors appropriately and gave too much weight to

Steven's situation. The trial court found Steven was not a

reluctant parent and noted parenting styles differ. Parenting

styles differ in intact marriages and relationships, but meaning-

ful engagement in the life of a child requires a knowledge of and

participation in a child's school activities, extracurricular

activities, and the child's community. It also requires some

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effort to maximize allotted visitation. Given Steven's economic

situation and his distance from Dwight, perhaps he has done as

well as can be expected. However, his involvement in Noah's life

is not sufficient to trump the intertwined best interests of Noah

and Desiree that will be served by removal.

Removal cases are difficult for courts to decide. No

matter the outcome, one party's life will likely be affected

detrimentally. However, based on the increase in the quality of

life to Desiree and Noah, we find it was against the manifest

weight of the evidence to deny removal. It is in the best

interest of Noah to move to Colorado with his mother. We commend

Desiree and Steven for their cooperation. Further cooperation in

establishing a visitation schedule may enhance Noah's relation-

ship with both parents. We reverse the trial court's judgment

and remand the cause for the limited purpose of setting a visita-

tion schedule.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment and remand with directions.

Reversed and remanded with directions.

McCULLOUGH and COOK, JJ., concur.

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