dissenting:
I respectfully dissent. In my opinion, the trial court’s denial of respondent’s request to remove the children from Illinois to Wisconsin was against the manifest weight of the evidence. Thus, the judgment should be reversed.
Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/609(a) (West 2004)) allows a trial court to approve a custodial parent’s removal of the minor children from Illinois when it is in the children’s best interests. In denying respondent’s removal request, the trial court stated that it “applied and balanced” the various factors set forth by our supreme court in In re Marriage of Eckert, 119 Ill. 2d 316 (1988). The Eckert factors include: (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the children; (2) whether the proposed move is a ruse designed to frustrate or defeat the noncustodial parent’s visitation; (3) the noncustodial parent’s motives in resisting removal; (4) the noncustodial parent’s visitation rights; and (5) whether a reasonable visitation schedule can be worked out. Eckert, 119 Ill. 2d at 326-27. According to the trial court, it was unclear that a move to Wisconsin would likely enhance the quality of life for respondent and the children. In addition, the court found that the fourth and fifth Eckert factors pertaining to visitation did not favor removal.
A trial court’s determination of what is in the children’s best interests will not be reversed on appeal unless that determination is against the manifest weight of the evidence and it appears that a manifest injustice has occurred. In re Marriage of Parr, 345 Ill. App. 3d 371, 376 (2003). While the majority and I agree that the manifest-weight standard applies, the majority concludes that the trial court’s decision cannot be reversed under this standard. I disagree. A decision is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings are unreasonable, arbitrary, and not based upon any of the evidence. In re Marriage of Main, 361 Ill. App. 3d 983, 989 (2005). Based on my review of the record, the trial court’s decision is against the manifest weight of the evidence because the opposite conclusion is clearly evident and a manifest injustice will result from preventing the children’s removal. Thus, unlike the majority, I believe that application of the manifest-weight standard requires reversal in this case. See In re Marriage of Ludwinski, 312 Ill. App. 3d 495, 498 (2000) (“Although the trial court has broad discretion in these cases, that discretion is not unlimited and, when the decision is against the manifest weight of the evidence, it will be reversed”). Otherwise, the manifest-w„eight standard becomes tantamount to no review at all.
In In re Marriage of Collingbourne, 204 Ill. 2d 498, 523 (2003), our supreme court cautioned that the purpose of the factors set forth in Eckert is not to establish a test in which the parent seeking removal must meet every prong; rather, the Eckert factors are to be considered and balanced by the trial court and no one factor is controlling. Further, while the Eckert factors should be considered, they are not exclusive and a trial court may validly consider other relevant factors, as dictated by the specific circumstances in the case. Collingbourne, 204 Ill. 2d at 522-23. For the following reasons, I disagree with the trial court’s assessment of the Eckert factors in this case. In addition, I believe that there are other relevant factors that favor the children’s move to Wisconsin.
With respect to the first Eckert factor, the trial court found that, while the Wisconsin Dells is a beautiful place to visit, the children have “strong ties with family, friends and community in McHenry, Illinois.” The court further found the following:
“The negative aspects of their current living situation in McHenry exist, in large part, because of the choices that [respondent] has made. [Respondent] chooses to work only 15 hours a week. While this choice has allowed [respondent] to spend more time with her children before and after school, it requires her family to live in a house that she does not like. This choice has also and [szc] prevented [respondent] from making ends meet without the financial assistance of her fiancé.”
Contrary to the majority’s conclusion, I believe that the trial court improperly penalized respondent for not seeking increased income opportunities or improved housing. See Ludwinski, 312 Ill. App. 3d at 500 (the trial court may have inappropriately penalized the custodial parent for not seeking increased income opportunities in Illinois). Whether the parent requesting removal seeks employment in Illinois is not one of the Eckert factors that courts must consider. Ludwinski, 312 Ill. App. 3d at 500-01. Moreover, the custodial parent seeking removal is not required to make every effort to remain in Illinois or to exhaust all employment opportunities in Illinois. Ludwinski, 312 Ill. App. 3d at 500. Respondent explained that she works approximately 15 hours a week because she feels that it is important to be home with Jessica and Jeffrey when they are not in school. Respondent’s schedule permits her to be at home before and after school, when the children stay home sick, and in the summer. Respondent testified that based on her salary, she could not afford a better place to live. Respondent is able to work fewer hours and spend time with her children due to Mayer’s financial assistance. However, Mayer testified that if respondent remains in "Illinois, it will be difficult to continue to support her on an ongoing basis. Thus, unless Mayer moves to Illinois, respondent will be forced to find a full-time job to support her family. Obviously, working full time means less time with her children. Also, respondent testified that she is not qualified for most jobs because she does not have special training beyond a high school education. Accordingly, the stress of finding full-time work is compounded by her level of schooling, which limits her employment options.
In addition to financial pressures, a single parent must face a myriad of scheduling pressures. Collingbourne, 204 Ill. 2d at 527. As the children’s primary caretaker, it is respondent’s responsibility not only to pay expenses but to handle conflicts between her work schedule and the children’s care. See Collingbourne, 204 Ill. 2d at 526-27 (the day-to-day issues a single parent must face include the children’s physical and emotional well-being, their performance at school, their desire to engage in extracurricular activities, and their care when the parent cannot be with them). Respondent explained that her previous full-time job required her to work from 7:30 a.m. to 5 p.m. and that she could not pick up the children after school. Because full-time employment allows only so much flexibility in taking time off, respondent expressed concern that she would not be able to be home when the children are sick and that the children will be unsupervised during the summer.
Conversely, if respondent moved to Wisconsin, she would not need to work because Mayer would provide for her and her children. See Collingbourne, 204 Ill. 2d at 529 (an improvement in the financial situation of the custodial parent will generally benefit a child by enhancing the child’s standard of living). Not only would she be relieved of the stress of finding a job and working full time, but she would have more quality time with Jeffrey and Jessica. Respondent would not need to worry about rushing off to work, hiring babysitters, or leaving the children home alone. In her words, respondent is trying to establish a suitable, comfortable family life where she is not “on edge.” She testified that Mayer makes her happy, that she is more relaxed in Wisconsin, and that her relationship with Jeffrey and Jessica has thereby been enhanced. See Collingbourne, 204 Ill. 2d at 526 (the best interests of the children cannot easily be severed from the interests of the custodial parent with whom the children reside and upon whose mental and physical well-being the children primarily depend).
Furthermore, the creation of a new family unit and the social environment of a traditional family setting may be considered an important benefit to children. Collingbourne, 204 Ill. 2d at 529. Indeed, our society places great weight on the right to marry and remarry. Eaton, 269 Ill. App. 3d at 516. It was respondent’s belief that the children would benefit from a “complete family,” meaning a man and a woman in the home. This way, the children would have both female and male perspectives on everyday issues. “[Sjince a court has no power to require the noncustodial parent to remain in Illinois, or to require members of the extended family to remain in Illinois, some deference is due to the custodial parent who has already determined the best interests of her children and herself are served by remarriage and removal.” (Emphasis in original.) In re Marriage of Eaton, 269 Ill. App. 3d at 515-16.
In addition, the children’s living conditions would be enhanced by moving to Wisconsin. First, there is stability in living in Mayer’s home without the worry of rent or a nosy landlord. According to respondent, she moved several times before renting her current home, and her current home is problematic due to its location near a busy highway and the landlord situation. If removal were permitted, she would not have to find more suitable housing in Illinois. Second, Jessica has asthma and respondent testified that the rental property is musty and that the air quality is poor. In the Wisconsin home, Mayer installed a high-efficiency air filter in the furnace, which he testified remedied some of Jessica’s problems. Third, Mayer was constructing a room specifically devoted to the children that would contain shelves, tables, and benches. According to Mayer, the entertainment section/art gallery would provide a place for Jessica’s crafts and Jeffrey’s interests. For these reasons, I disagree with the majority’s conclusion that, with respect to housing, the children would essentially not gain anything new. I also note that the Wisconsin property provides greater access to the activities the children enjoy, in that it contains a pond, a shooting gallery, and 88 acres of wildlife and nature.
With respect to the trial court’s finding that the children have strong ties with their extended family in Illinois, this factor does not outweigh the value of the relationships they have developed with respondent’s extended family in Wisconsin. Respondent explained that in the past, she was not able to visit her parents or her brother’s family in Wisconsin very often because she worked full time during the week and cleaned houses on the weekends. However, in traveling to Wisconsin the past few years, both Jeffrey and Jessica have become close to their grandparents and their uncle’s family. Respondent testified that Jeffrey was now “very close” to her brother and that they often hunt and go paintballing together. Also, both respondent and petitioner testified that Jeffrey and Jessica do not see their grandparents as often as they would like.
Moreover, there is no reason why the children cannot maintain relationships with their extended family in McHenry County if they move to Wisconsin. Petitioner testified that the children see his extended family approximately twice a month, which could continue during the children’s alternate weekend visits in McHenry County. Respondent also recognized the importance of maintaining relationships with her family members in the McHenry area. She testified that she was willing to bring her nieces and nephews to Wisconsin or bring her children to Illinois to continue those relationships. According to respondent, one of her sisters travels to Wisconsin “quite often” so that her son can hunt, which would provide opportunities for Jessica and Jeffrey to spend time with them. Given her history of maintaining these relationships, there is nothing to suggest that they would be lost if respondent and her children were allowed to move three hours away.
The next two Eckert factors relevant here involve the visitation rights of the noncustodial parent and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. With respect to these factors, the trial court found the following:
“In the present case, the court finds Mr. Mayer’s unwillingness to move to Illinois ‘if I can avoid it’ to be both an unpersuasive and inadequate reason for removal. Thus, while [respondent’s] proposed visitation schedule appears reasonable at first blush, the court will not make Jeffrey and Jessica change schools, leave their friends and much of their family, sit in a car for six hours every other weekend in order to see their father, and eliminate their time with their father during the week, simply because Mr. Mayer chooses not to move if he can avoid it.”
I disagree with the trial court’s assessment of the evidence regarding visitation. Respondent is the same mother who cooperated in visitation and fostered the children’s relationships with petitioner and their extended family in McHenry County. While the trial court noted that petitioner would lose one evening’s visitation during the week, the visitation schedule upon removal need not be equivalent to that prior to removal. Ludwinski, 312 Ill. App. 3d at 502. Because any removal will have some effect on visitation, the real question is whether a visitation schedule that is both reasonable and realistic can be created. Eaton, 269 Ill. App. 3d at 515. A reasonable visitation schedule is one that will preserve and foster the children’s relationship with the noncustodial parent. Eckert, 119 Ill. 2d at 327. It need not be perfect. Parr, 345 Ill. App. 3d at 379. Initially, I note that the judgment of dissolution did not provide for weekday visitation with petitioner. However, when respondent was employed full time, she had to work one weekday evening, and the children stayed with petitioner. Although respondent no longer works full time, she has continued that visitation schedule, which is evidence of her commitment to the children’s relationship with their father. See Eaton, 269 Ill. App. 3d at 515 (“Instead of assuming visitation could not be reasonably accommodated if permission for removal were granted, the presumption ought to be in [the mother’s] favor, i.e., [she] will continue to cooperate in a reasonable and realistic schedule designed to preserve [the father’s] relationship with his children”).
Moreover, respondent’s request to move to Wisconsin involves only a three-hour drive from McHenry County. As a result, it is not the type of long-distance move that requires complicated travel plans or that will substantially impair petitioner’s involvement with the children. See Eckert, 119 Ill. 2d at 328 (when removal to a distant jurisdiction will substantially impair the noncustodial parent’s involvement with the child, the trial court should assess the potential harm to the child that may result from the move). Because petitioner will be able to continue his every-other-weekend visitation schedule with the children as before, the distance between them will not greatly limit the frequency of their contact or adversely affect the quality of their relationship. See Collingbourne, 204 Ill. 2d at 532 (where former bimonthly visitation would be replaced with a schedule that allows less frequent, but more extended, contact between the father and the son, the trial court must evaluate both quantitative and qualitative differences in visitation). While there would be an effect on visitation, the three-hour distance would not prevent petitioner from maintaining a close relationship with Jessica and Jeffrey.
The majority points out that petitioner currently stops by on occasion to say hello to the children, that he has attended the children’s choral concerts and soccer games, and that Jeffrey has ridden his bike to petitioner’s house. According to the majority, this type of accessibility to the children would be drastically reduced, if not eliminated, if the petition were granted. However, as stated, removal will always have some impact on visitation. Otherwise, children could never be removed if the custodial parent lives close to the noncustodial parent and the children share a close relationship to the noncustodial parent. Also, I believe that the majority overstates petitioner’s day-to-day contact with the children. It appears that Jeffrey has ridden his bike to petitioner’s home on five occasions and that he is no longer participating in soccer. According to respondent, petitioner’s unscheduled visits were infrequent and did not last more than five minutes. See In re Marriage of Stahl, 348 Ill. App. 3d 602, 619 (2004) (Bowman, J., dissenting) (the noncustodial parent’s fears regarding visitation are not well founded given the relatively short distance to Wisconsin the custodial parent wants to move). In any event, the crucial question is whether a reasonable visitation schedule can be created.
In my opinion, such a schedule can be achieved in this case without harming the children. To this end, respondent proposed a schedule in which she would meet petitioner half way for thé drop-offs and pickups, and give him extra time on Sundays. To make up for the one weekday that petitioner would lose, respondent suggested that he could talk to Jessica and Jeffrey on the phone during the week, and then if a three-day weekend fell on his scheduled weekend, he could have the extra day with them. She also proposed giving petitioner a full week of visitation at spring break, every other year, and possibly another week of visitation in the summer.
Given their amicable history, I have no doubt that the parties could create a schedule that preserves petitioner’s relationship with the children. Both respondent and petitioner testified that visitation has proceeded smoothly in the past and that they have worked together in being flexible and fashioning a workable schedule. There is no reason why the parties’ mutual love for the children would not ensure such cooperation in the future. Admittedly, where a noncustodial parent has been diligent in exercising visitation rights, the court should be reluctant to permit removal of children for frivolous or inadequate reasons. Ludwinski, 312 Ill. App. 3d at 503. However, as discussed, respondent’s reasons are neither frivolous nor inadequate. Moving to Wisconsin will provide benefits of financial security, increased time with her children, improved living conditions, stable housing, and a traditional family setting.
It is well established that a “noncustodial parent does not possess a veto power to stop a custodial parent from exercising a reasonable desire to remarry and move out of the state.” Ludwinski, 312 Ill. App. 3d at 504. By denying respondent’s removal petition, the trial court is essentially requiring that respondent choose between a new husband in Wisconsin and working full time in Illinois to remain with her children. Cf. Eaton, 269 Ill. App. 3d at 516 (“While the trial court’s decision did not prohibit petitioner from remarrying, it did make that choice much less attractive, forcing her to choose between a new husband in Florida and her children in Illinois”). In its written opinion, the trial court stated that “there is no reason why [respondent] and Mr. Mayer cannot make a life together in Illinois, except that Mr. Mayer chooses not to.” Ironically, if Mayer moved to Illinois, the children could end up living more than three hours away, because Mayer testified that he would want to live in the southern part of the state. See Main, 361 Ill. App. 3d at 990 (section 609 of the Act does not apply to intrastate transfers and a custodial parent need not obtain permission from a court before moving to another location within Illinois). This would hardly be a better outcome than granting respondent’s request to remove the children to Wisconsin.
In light of the Eckert factors and the other relevant factors in this case, respondent’s request for removal should have been granted. Affirming the trial court’s decision in this case forces respondent to choose between marrying a man who lives three hours away and remaining with her children in Illinois, despite evidence that the move to Wisconsin would enhance the general quality of life for both respondent and her children. With respect to visitation, the bottom line is a reasonable change in the visitation schedule, given the short distance of the move. Instead of interpreting the best interests of the children in a way that impedes respondent from exercising a reasonable desire to remarry and move out of the state, I believe that the children’s best interests would be better served by granting respondent’s petition. Because the trial court’s finding is against the manifest weight of the evidence, I would reverse the trial court’s denial of the removal petition and remand for the limited purpose of setting a visitation schedule.