dissenting:
The majority has correctly set forth the standard of review in this case; namely, the manifest weight of the evidence. However, instead of according the trial court’s decision the deference it is due (In re Marriage of Collingbourne, 204 Ill. 2d 498, 522 (2003)), the majority appears to have usurped the fact-finding function of the trial court and decided this case de novo. As I believe that the trial court’s well-reasoned order is not against the manifest weight of the evidence and should be affirmed, I dissent.
Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act places the burden of proof in a case such as this on the party seeking removal to show that the move would be in the child’s best interest. 750 ILCS 5/609(a) (West 2008); In re Marriage of Eckert, 119 Ill. 2d 316, 325 (1988). The trial court’s determination of the child’s best interest should not be disturbed on review unless it is “clearly against the manifest weight of the evidence.” Eckert, 119 Ill. 2d at 328.
In Eckert, the supreme court suggested a number of factors which a trial court should consider in a removal proceeding to determine the best interests of the child. The trial judge in this case entered a 31-page written order in which he meticulously outlined all of the evidence going to each of the Eckert factors. The trial judge concluded that one of the Eckert factors weighed in favor of removal; namely, that the proposed move from the jurisdiction would enhance the general quality of life for both the petitioner, Meeta Bhati, and the minor child. However, the trial court found that the remaining factors weighed against removal.
The majority concedes that the trial court correctly determined that the respondent, Ajay Singh, has genuine motives in resisting removal. The majority also found that removal of the minor child from this jurisdiction will diminish the respondent’s visitation time and that this factor weighs against removal.
As to the factors concerning the petitioner’s motives in seeking the move and the question of whether a reasonable visitation schedule can be reached that will preserve and foster the minor child’s relationship with the respondent, the majority takes issues with the trial court’s findings. The trial court concluded that, although the petitioner’s motives in seeking removal are genuine, they are insincere and intended to frustrate the respondent’s visitation with the child. The trial court found that the petitioner has failed to embrace the spirit of the joint parenting agreement and that she would be pleased if she was no longer required to interact with the respondent with the frequency that she is now required to do. There is no question that there is evidence in the record of the petitioner’s failure to consult the respondent in matters involving the education of the minor child and that the respondent had difficulty with the petitioner in scheduling extra visitation beyond that which the joint parenting agreement provided. Further, Dr. Star, the court-appointed clinical psychologist, reported that the petitioner’s sincere commitment to the respondent’s involvement with the minor child did not seem evident. Contrary to the majority, I believe that there is evidence in the record which could support the conclusion that the petitioner’s motives in seeking removal are not grounded in a concern for the best interests of the minor child and that this factor weighs against removal.
In concluding that a reasonable visitation schedule could not be achieved in the event that the child were removed from the jurisdiction, the trial judge again relied upon Dr. Star’s opinion that the petitioner does not appear to have a sincere commitment to the respondent’s involvement with the child. The court noted that the petitioner never told the respondent of her intent to move to North Carolina; that she coached the child to tell Dr. Star that she wanted to move; that the petitioner told Dr. Star that the respondent had been physically abusive toward her when there was no credible evidence to support such a claim; that she told her fiancé, Dr. Desai, that the respondent had had no involvement with the child for the past five years when the facts show that the respondent has always been involved in the child’s life and that they have a warm and close relationship. Again, I believe that these facts could well support the trial court’s finding that the petitioner has behaved in a manner indicative of an intent to frustrate the respondent’s visitation with their child, and the court’s conclusion that she would not work to achieve a reasonable visitation schedule.
Additionally, the majority mistakenly asserts that the trial court “did not specifically comment on the ‘effect’ removal would have on Ajay’s visitation rights.” 397 Ill. App. 3d at 64. To the contrary, paragraph 23 of its order states that: “The Court finds that removal with [sic] substantially impair Ajay’s parenting time.”
Most glaringly, however, is the majority’s total failure to address the Eckert factor which I believe is of paramount concern in this case; namely, the potential harm to the child which may result from the move due to impairment of the respondent’s involvement with the child. See Eckert, 119 Ill. 2d at 328. After evaluating all of the evidence in this case, the trial court concluded that the loss of regular and ongoing visitation between the minor child and the respondent and his family members would be detrimental to the child’s emotional well-being.
The trial court specifically mentioned the Eckert factors and weighed each one. It is not this court’s function to reweigh the evidence (In re Marriage of Smith, 172 Ill. 2d 312, 324-25 (1996)) or assess the credibility of the witnesses and set aside the trial court’s determinations merely because a different conclusion could have been drawn from the evidence (In re Marriage of Pfeiffer, 237 Ill. App. 3d 510, 513 (1992)). This court’s function is to determine whether the trial court’s finding that removal of the child would not be in her best interests is against the manifest weight of the evidence. Eckert, 119 Ill. 2d at 328. In applying that standard of review, we are to accord deference to the trial court’s determination and should be guided by a presumption in favor of the result reached by the trial court. Collingbourne, 204 Ill. 2d at 522.
Whether this court might have reached the same conclusion is not the test of whether the trial court’s determination is against the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the trial court’s determination. In re Marriage of Matchen, 372 Ill. App. 3d 937, 946 (2007). I believe that there is, and, as a consequence, I would affirm.