dissenting:
I do not agree with the majority’s construction of the applicable statutes or with its conclusion that this case must he remanded for another hearing on Fisher’s motion for an injunction. In my view, section 13.5 has no application to this case, and therefore the cause should not be remanded for a hearing to determine whether Fisher has the right to an injunction under that section.
This case has worked its way through the circuit court, the appellate court, and the supreme court, without anyone questioning Fisher’s right to file for an injunction under section 13.5. This is curious, as the first sentence of that section provides that:
“In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from IIlinois pending the adjudication of the issues of custody and visitation.” (Emphases added.) 750 ILCS 45/13.5(a) (West 2004).
Thus, before a party may move for an injunction under section 13.5, there must be (1) an action brought under the Parentage Act, and (2) that action must be one for the initial determination of custody or visitation, or for modification of a prior custody or visitation order. Here, there was no pending action for modification of custody or visitation when Fisher moved for an injunction. Rather, Fisher initiated this proceeding by moving for an injunction. There was briefly a removal action filed by Waldrop, and this removal petition included a request that Fisher’s visitation schedule be “adjusted accordingly,” but Waldrop voluntarily dismissed this action after one week. Thus, at the time Fisher moved for the injunction there was not, nor is there now, a pending action for custody or visitation. Why would we remand this cause for a hearing to determine whether Fisher is entitled to an injunction preventing Callie’s removal from Illinois pending the determination of custody or visitation issues, when there are no pending custody or visitation issues?
Although the error is not ultimately relevant on the facts of this case, the majority gets itself on the wrong track by improperly reading the word “removal” into section 13.5. The majority quotes from section 13.5 and even emphasizes the language “pending the adjudication of the issues of custody and visitation.” See 221 Ill. 2d at 115. In the very next sentence, however, the majority asserts that “[i]t is clear that the injunctions permitted by section 13.5 are intended to be temporary in nature, keeping the child in Illinois only until the court can conduct a hearing on the merits of a removal petition.” 221 Ill. 2d at 115. The majority never explains how it made the leap from “issues of custody and visitation” to “removal petition.” Perhaps the majority is assuming that a petition for removal is necessarily a petition to modify visitation. This is not necessarily the case, however, and whether a removal results in a modification of visitation depends on the circumstances of the particular case. Moreover, as the majority is well aware, the Parentage Act treats “removal” as a separate issue from custody and visitation. See, e.g., 750 ILCS 45/ 14(a)(1) (West 2004) (“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”); 750 ILCS 45/16 (West 2004) (“The court has continuing jurisdiction to modify an order for support, custody, visitation, or removal included in a judgment entered under this Act”). Thus, contrary to the majority’s interpretation, section 13.5 is not automatically triggered when the action the court is considering is a removal petition filed by the custodial parent. Here, however, the removal petition included a request that the court modify visitation accordingly. Thus, if the majority is going to conclude that section 13.5 is relevant to this case, it should do so solely on the basis that Waldrop moved to modify the visitation schedule, not because she filed a removal petition. It should then conclude both that Waldrop’s withdrawal of that request renders section 13.5 inapplicable and that a remand for a hearing on Fisher’s request for an injunction is unnecessary.
Moreover, even if the majority were correct that the word “removal” should be judicially legislated into section 13.5, a remand would still be unnecessary. According to the majority, “the injunctions permitted by section 13.5 are intended to be temporary in nature, keeping the child in Illinois only until the court can conduct a hearing on the merits of a removal petition.” 221 Ill. 2d at 115. Yet the majority readily concedes that there is no removal petition pending in the circuit court. 221 Ill. 2d at 107, 119, 121. The majority leaves it to the reader to ponder why this cause is being remanded to the circuit court to determine if it will enjoin removal pending the adjudication of the merits of a removal petition when there is no removal petition.
In my view, the majority is unnecessarily creating tension between the various sections of the Parentage Act dealing with removal. I believe that the legislature intended section 13.5 to be used before a judgment of parentage has been entered. Once the court has entered a parentage judgment, section 609 of the Marriage Act is triggered and a noncustodial parent no longer needs to rely on section 13.5. 750 ILCS 45/14(a)(l), 16 (West 2004); see also A. Albrecht, 2003 Spring Session Roundup: Family Law, 91 Ill. B.J. 381 (2003) (“House Bill 1382 (Fritchey, D-Chicago; Garrett, D-Lake Forest) allows a party to a Parentage Act case to obtain an injunction prohibiting the permanent removal of the child from Illinois. There is no requirement that parentage be established before the petition for injunction is filed. Once there is an order of parentage, the criteria of section 609 of the Illinois Marriage and Dissolution of Marriage Act apply”). Section 609 requires a custodial parent to obtain leave of court before temporarily or permanently removing the child from the state. Thus, section 609 already restrains the parent from removing the child from the state, and an injunction would be wholly redundant. This interpretation is supported by the plain language of section 13.5 and by its chronological placement in the Parentage Act. The legislature placed this section directly after section 13.1 (750 ILCS 5/13.1 (West 2004)), which deals with temporary support orders pending a judicial determination of parentage, and before section 14, which addresses parentage judgments. Moreover, one of the factors the legislature directs the court to consider in determining whether to grant a section 13.5 injunction is “the likelihood that parentage will be established.” 750 ILCS 45/13.5(a)(2) (West 2004). This factor makes little sense if the legislature intended this section to apply after a parentage judgment has been entered. When section 13.5 is viewed in this light, it makes sense that the legislature made section 13.5 applicable only in custody and visitation actions and not in removal actions: once section 609 is triggered and a removal petition is required, section 13.5 is irrelevant. Here, because the court had already entered a parentage judgment, Waldrop was required to demonstrate that removal was in Callie’s best interests and to obtain leave of court before temporarily or permanently removing her from Illinois.
Contrast this to the majority’s interpretation. The majority believes that the legislature intended to establish a bifurcated proceeding for postjudgment removal actions. Under this procedure, although the custodial parent must obtain leave of court before removing the child, the noncustodial parent may also move for an injunction to prevent removal. If the noncustodial parent does so, the court will then hold two hearings, the first focusing on the parents’ interests and the second focusing on the best interests of the child. Apparently, the purpose of this first hearing is for the court to determine if it will allow the custodial parent to improperly leave the state in defiance of the statute. At the second hearing, the court will focus on the best interests of the child and determine if the custodial parent will be allowed to remove the child lawfully.
The majority is able to reach this strange conclusion only by rewriting section 609 of the Marriage Act. Section 609, which is fully applicable in Parentage Act cases once a parentage judgment has been entered, requires a party to obtain leave of court before removing the child. The majority holds, however, that a custodial parent is free to remove the child simply by filing a removal petition, and, as long as the parent does so, he or she will not be subject to contempt proceedings. 221 Ill. 2d at 117 (“the custodial parent [must] request leave of court before removing children from the state regardless of whether an injunction has been sought, and a custodial parent who removes children from the state without having first at least requested leave could potentially be subject to contempt proceedings” (emphases added)). The majority apparently feels cornered into this interpretation, because a straightforward application of section 609 shows why a bifurcated hearing makes no sense. If the custodial parent may not remove the child without obtaining leave of court, then the injunction hearing is without any effect. If the injunction is denied, the custodial parent may not leave; if the injunction is granted, the custodial parent may not leave. See 221 Ill. 2d at 121 (“[r]egardless of the outcome of this hearing, Waldrop must file a petition for leave to remove Callie from Illinois if she still intends to do so”). Thus, the majority is forced to come up with its “free to leave once leave is requested” theory in order to make section 13.5 relevant in postjudgment removal actions.
If this is bad statutory construction, it is even worse policy. Under the majority’s bifurcated hearing system in which a parent is free to remove the child once leave is requested, and the court will only consider the parents’ interests in deciding whether to enjoin this first removal, it is possible that the court could reach two different conclusions. It could allow the initial removal, based on an evaluation of the parents’ interests, but then deny removal once it considers the child’s best interests. See 221 Ill. 2d at 119 (“[i]t is not impossible that a circuit court could conclude that a noncustodial parent was not entitled to an injunction but also ultimately determine that the custodial parent’s proposed removal of the child would not be in the child’s best interests”). The child will then have his or her life disrupted twice, and the custodial parent could be forced to give up his or her new life and move back to a previous home. Because a court will be loathe to do this, the result of the majority’s bifurcated hearing system inevitably will be a prejudicing of the rights of noncustodial parents. If the child is removed from the state pending the best-interests hearing, the child will have begun a new life in a new home, and his or her best interests likely will have changed. It will be impossible for a court to turn a blind eye to the child’s changed environment. See, e.g., Reddig v. Reddig, 12 Ill. App. 3d 1009, 1011 (1973) (court remands for new best-interests hearing for children who had been improperly removed to Texas in violation of a court order; appellate court determines that trial court must take into account the fact that children had been living in Texas for over six months).
Although it is not always possible for a court to know what is in a child’s best interests, I think we can say for certain what is not: multiple removal hearings with shifting burdens of proof. Callie has already been subjected to one removal hearing, and under the majority’s erroneous interpretation of the Parentage Act, she will now be subjected to two more, with different burdens of proof. The majority brushes these concerns aside with the assertion that a similar procedure is provided for in the Marriage Act. 221 Ill. 2d at 117. This is not correct. The Marriage Act injunction provision is one sentence that states that a party may request a preliminary injunction to enjoin a party “from removing a child from the jurisdiction of the court.” 750 ILCS 5/501 (a)(2)(ii) (West 2004). This section reads nothing like section 13.5 of the Parentage Act and does not list factors for the court to consider in determining whether to issue such an injunction. The majority fails to cite a single case supporting its theory that there is a bifurcated system under the Marriage Act in which there are two removal hearings, one focusing on the parents and another focusing on the child. I fear that the result of today’s decision will be that the bifurcated removal hearing necessarily will be read into the Marriage Act, and that future courts will see a tension between sections 501(a)(2)(ii) and 609 where none was evident before. Moreover, it is inevitable that parents seeking to remove children under the Marriage Act will rely on today’s opinion as authority for the proposition that they are entitled to remove them simply by requesting leave to remove.
Finally, even if the majority’s construction of the Parentage Act is correct and section 13.5 is applicable to this case, it would still not be necessary to remand for a new injunction hearing. The majority fears ruling on the request for an injunction on the basis of a “cold record.” 221 Ill. 2d at 120. Yet it concedes that two out of the three statutory factors clearly weigh in favor of Fisher. Moreover, section 13.5 allows the court to consider any other factor. Surely significant factors weighing in favor of Fisher are that Waldrop has no right to remove Callie from the state and, indeed, is not even currently seeking to do so, as she has withdrawn her petition. Thus, even if the majority persists in its erroneous view that section 13.5 applies after a parentage judgment has been entered and in the absence of pending custody and visitation issues, it should conclude that Fisher is entitled to an injunction rather than remanding this cause for another hearing.
In sum, there is simply no reason to remand this cause for another hearing on Fisher’s request for an injunction. That request is moot because (1) a parentage judgment has already been entered, thus triggering the protections of section 609 of the Marriage Act; and (2) there are no custody or visitation issues currently pending before the circuit court. The majority’s misreading of the applicable statutes has led it to adopt a disruptive procedure that is in no one’s best interests, least of all the children involved in removal cases, whose best interests are supposed to be paramount. I cannot join such an opinion, and therefore must dissent.
JUSTICE KILBRIDE joins in this dissent.