dissenting:
Cases involving child custody and removal of a child out of state by the child’s custodian are among the most difficult for trial courts to resolve, requiring Solomon-like wisdom. The difficulty is magnified when the competing parents are good people who both have a strong relationship with their child and have appropriately shown their love and concern for that child. That situation is essentially the one before us in this appeal, and our deference as a reviewing court to both the trial court’s findings of fact and exercise of discretion should never be higher. Despite the deference due the trial court, the majority here second-guesses that court’s carefully considered judgment and reverses. I respectfully dissent.
I. JAMES’ INVOLVEMENT WITH HIS DAUGHTER
The majority states that “[w]hen the suggestion that the mother caused all these problems by her unilateral decision to marry someone from out of state is eliminated from the case, all the remaining factors either favor the mother or do not favor either party.” 317 Ill. App. 3d at 435. This statement is inaccurate and a distortion of the record.
James is the owner and chief executive officer of his own company, Metagenics Midwest, Inc., which wholesales food supplements to physicians. His 1997 tax return lists his gross wages as $149,999.
James testified that, under their original custody arrangement, he picked Devon up at school every Thursday so that they could have dinner together and attend church that evening. Devon then spent the night at James’ house, and he took her to school on Friday morning. Every other weekend, James kept Devon from Thursday through Sunday. On those weekends, they also attended religious services on Sundays. Although James did not attend some of the school functions that took place during business hours, he frequently had lunch with Devon and her classmates at school and spoke to Devon’s teacher regularly. He also takes Devon to her doctor and dental appointments.
Although James needed to travel for business reasons in the past, he stated that he would arrange to travel less if Kristine’s removal motion was denied. He was in the process of hiring an assistant who could assume those responsibilities. James had already purchased a residential lot in Devon’s current school district so that, if he was to become primary custodian, Devon would not have to switch schools.
Devon has a close relationship with James’ mother, Joy Shaddle, who lives about an hour from James’ house. She is also close to James’ sister, Kathleen Carlson, who lives in Chicago. Joy and Kathleen both testified about their relationships with Devon and the various activities they enjoy with her.
Dr. Theodore Matthews, a clinical psychologist, testified that Devon’s interests would be best served if she could have access to both parents. If that was impossible, it would be best for her to remain primarily in Kristine’s care. According to Matthews, Devon had minimized the significance of the move in her own mind and its impact on her relationship with James. She was under the impression that she would spend time with him every other weekend.
The trial court found that the relationship between James and Devon was one of “remarkable depth” and noted that the preservation of this relationship was the overriding factor in its decision. The court’s finding was warranted. The record shows that James assiduously exercised his visitation rights and made an extraordinary effort to develop and maintain a meaningful bond with Devon. The court was therefore justified in concluding that James and Devon’s relationship should not be jeopardized to satisfy Kristine’s desire to move to Florida. Moreover, in light of the distance involved, no realistic visitation schedule would enable James to preserve and foster his relationship with Devon.
II. SIDNEY’S PECULIAR FAMILY HISTORY
Kristine argues on appeal that it was improper for the trial court to consider the evidence related to Sidney’s divorce from his first wife. I disagree, and the majority appears to disagree as well, given that it discusses the depositions that were taken during that divorce. The circumstances surrounding Sidney’s divorce clearly gave the trial court pause, and they should have given the majority pause as well. Many divorces result in bitterness between the parties, but few result, as did Sidney’s, in the total estrangement of a teenage child from the noncustodial parent. Indeed, in the hundreds of divorces I was involved in as a trial judge, as well as the hundreds I have had occasion to deal with as an appellate judge, I have never before seen the total rejection by a teenage child of the noncustodial parent from that child’s life, despite the noncustodial parent’s apparent efforts to reestablish some sort of relationship. Perhaps the son’s response is a total overreaction to the incidents in which Sidney struck him when he was a younger child, but no one knows that to be the case, certainly not the majority.
The majority writes that “[i]t would have been improper for the trial court to deny the petition for removal simply to eliminate any possibility that Sidney might harm Devon, of which there was no evidence.” 317 Ill. App. 3d at 435.1 emphatically disagree with this statement and believe it the height of naiveté.
Upon Devon’s removal to Florida, Sidney will be, for all practical purposes, one of her parents. How then could it be improper for the court to consider Sidney’s record as a parent in determining whether to grant the removal petition? Sidney’s record as a parent is not good. The record strongly suggests that he has totally alienated his only son by, among other things, beating him. In this age of heightened awareness about problems of domestic abuse, the majority is simply wrong to imply that it was unreasonable for the trial court to be concerned about Sidney’s parenting ability. As the stepfather with whom Devon will be living, Sidney’s impact on her will be immeasurable — whether positive or negative. The majority’s dismissive approach of the trial court’s concerns is reminiscent of the “one-free-slap” rule, the resurrection of which I want no part.
The issue before the trial court was not whether Sidney presented an imminent danger to Devon. Instead, the issue was whether, based on all the circumstances of this case, a reasonable person could conclude that it was in Devon’s best interest not to move with Kristine to Florida where she would live with Sidney. In my judgment, the concerns about Sidney by themselves are fully sufficient to justify the trial court’s determination that Kristine’s petition should be denied.
In its ruling, the trial court noted that Sidney had been subjected to an order in his earlier divorce limiting his contact with his son, although the court was not totally aware of the circumstances in which that order was entered. Nonetheless, in deciding Devon’s best interest, the court observed that in contrast to its concerns about Sidney, “in terms of the care received from [James] and his side of the family there are no unknowns, there are no risks. There are no uncertainties.” In my judgment, this assessment was absolutely correct.
III. THE TRIAL COURT’S REMARKS REGARDING KRISTINE
A constant theme in the majority’s opinion is its desire to “spank” the trial court for its allegedly inappropriate comments about how Kristine made the “unilateral decision” to move to Florida and marry Sidney, even though the court had not approved her request to remove Devon from Illinois. In constructing her appellate argument, it appears as though Kristine combed the trial court’s ruling for remarks that could be construed as evidence of improper considerations. The majority seems to have done so as well. The record before us provides ample evidence supporting the court’s ruling such that we would have been able to affirm had the court simply ruled, “motion denied.” Courts of review should encourage trial courts to provide lengthy explanations of their rulings, such as the one the court provided here, and we should be disinclined to parse a court’s language explaining its decision in search of some questionable phrase that might be buried in its remarks.