dissenting:
I respectfully dissent.
I believe that the majority has wrongly decided this matter. The trial court has failed to properly apply the supreme court’s recent ruling in In re Marriage of Collingbourne, 204 Ill. 2d 498 (2003). Moreover, the trial court’s findings are against the manifest weight of the evidence. I would reverse the trial court’s denial of Lisa’s removal request.
Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/609(a) (West 2002)) provides that a trial court may approve a custodial parent’s removal of the minor children from Illinois when it is in the children’s best interests. The burden of proving that such removal is in the children’s best interests lies with the party seeking removal. 750 ILCS 5/609(a) (West 2002).
In In re Marriage of Eckert, 119 Ill. 2d 316 (1988), our supreme court identified specific factors that should be considered in determining if removal is in a child’s best interests. Eckert, 119 Ill. 2d at 326-27. First, the trial court “should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children.” Eckert, 119 Ill. 2d at 326-27. Second, the court should consider “the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation.” Eckert, 119 Ill. 2d at 327. Also, the court should examine the motives compelling the noncustodial parent to resist the move. Eckert, 119 Ill. 2d at 327. The visitation rights of the noncustodial parent should be considered, as the best interests of the child are served if he or she retains a healthy and close relationship with both parents, as well as other family members. Eckert, 119 Ill. 2d at 327. Finally, the court must determine if a realistic and reasonable visitation schedule can be reached if the move is allowed. Eckert, 119 Ill. 2d at 327. A reasonable visitation schedule should aim to preserve and foster the child’s relationship with the noncustodial parent. Eckert, 119 Ill. 2d at 327. If the best interests of the children would not be affected by a move to another state, the custodial parent’s removal request should granted. Eckert, 119 Ill. 2d at 327.
We reverse a trial court’s determination of what is in the best interests of the child only if 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. Based on my review of the record, I conclude that the trial court’s findings are against the manifest weight of the evidence and that a manifest injustice will be created by allowing the court’s determination to stand.
The first Eckert factor, and most contentious here, is the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the children. With respect to this factor, the trial court found that Lisa wanted to move primarily to pursue her own happiness, in that she sought to save money by consolidating her business and hoped to start a new family with Allen. Moreover, the court failed to find “substantial evidence of enhancement in the quality of the lives of the children.”
Recently, in Collingbourne, 204 Ill. 2d at 498, the supreme court observed that benefits a child may experience should not be characterized as “direct” or “indirect”; such distinctions may divert focus from the real issue of whether a child’s life will he enhanced by the move. Collingbourne, 204 Ill. 2d at 525. Rather, as the court stated in Eckert, a 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.’ ” (Emphasis in original.) Collingbourne, 204 Ill. 2d at 525, quoting Eckert, 119 Ill. 2d at 326-27. Indeed, removal would rarely be permitted where a child was in a good environment, with good schools, good parents, and good friends, if the court considered only the direct benefits to the child. Collingbourne, 204 Ill. 2d at 525. “Because the principal burden and responsibility of child rearing falls upon the custodial parent, there is a palpable nexus between the custodial parent’s quality of life and the child’s quality of life.” Collingbourne, 204 Ill. 2d at 526. Thus, the best interests of the child cannot be considered without also assessing the best interests of the custodial parent. Collingbourne, 204 Ill. 2d at 526.
The Collingbourne court cautioned that not every enhancement in the quality of life of the custodial parent automatically translates into an improvement in the quality of life of the child, or that benefits derived from the move will always be sufficient to warrant removal. Collingbourne, 204 Ill. 2d at 528. Rather, the court wished to “emphasize that because there is a nexus between the well-being of the custodial parent and the child who is in the parent’s care, all benefits afforded to the child as a result of the move must be considered by the circuit court in making its best interests determination.” Collingbourne, 204 Ill. 2d at 528. A trial court’s examination should not simply be limited to exploring enhanced economic opportunities for the custodial parent. Collingbourne, 204 Ill. 2d at 528-29. The court must also consider noneconomic factors that either contribute to or detract from the well-being and happiness of the custodial parent and the children. Collingbourne, 204 Ill. 2d at 528-29.
In this case, approving Lisa’s removal request would allow her to marry Allen. From all accounts, they would create a stable and loving family for Christiana and Tony. Allen and Lisa would be able to pool their finances and share their child-rearing obligations. The creation of a new family in the social environment of a traditional family setting constitutes an important benefit to children. See Collingbourne, 204 Ill. 2d at 529. Given the fact that Allen and Lisa operate a business together, it appears that the move would grant them tremendous flexibility in managing their daily lives. The move to Cedarburg would allow Lisa to spend much more time with the children and avoid using a child care provider. Her new workday would be from approximately 9 a.m. to 3:15 p.m., instead of 8 a.m. to 5 p.m. Her new hours would allow her to devote additional time and attention to the children rather than to work. In addition, the number of overnight business trips Lisa must take would be greatly decreased.
The children’s new school in Cedarburg, St. Francis Borgia, is at least comparable to and, in Lisa’s view, better than the school they attend in Geneva. It appears that the children would have a greater opportunity to participate in after-school activities in Cedarburg because Lisa would be free when the children finish school.
Carl has urged that no pecuniary benefits would result from the move, because Lisa does not expect that her income would change substantially after the move. However, Carl ignores the fact that Lisa and the children’s expenses would most certainly decrease as a result of the move to Cedarburg, as Lisa would share expenses with Allen. Thus, Lisa would have greater discretionary income. With the additional savings, Lisa indicated that she would contribute greater amounts to the children’s future education. Where a custodial parent’s financial situation improves, children will generally benefit as a result of an enhanced standard of living. See Collingbourne, 204 Ill. 2d at 529.
I further observe that, as a result of the move, Lisa expects that HSSM would save about $35,000 annually by consolidating offices and operating with greater efficiency. I do not believe that Lisa’s desire to move should be impugned simply because she is motivated in part by business interests. Although Carl argues that Lisa is placing financial interests before the well-being of her children, the record does not support such a conclusion. Rather, Lisa has reached a perfectly rational conclusion that moving to Wisconsin would result in certain incidental business benefits. The trial court should have considered this benefit when it considered the factors identified in Eckert. See Collingbourne, 204 Ill. 2d at 525, quoting Eckert, 119 Ill. 2d at 326-27.
The second and third factors provided in Eckert require the trial court to consider the motives of the custodial parent in requesting the move and the motives of the noncustodial parent in opposing the move. Eckert, 119 Ill. 2d at 327. With respect to Lisa, there is no indication in the record that Lisa’s desire to move to Cedarburg is “merely a ruse intended to defeat or frustrate visitation.” Eckert, 119 Ill. 2d at 327. Lisa indicated and demonstrated that she considers Carl’s involvement in the children’s lives very important. Carl also acknowledged that Lisa has been “pretty good” at arranging visitation, describing her level of cooperation as a “9 or 10” on a 10-point scale.
The trial court has wrongfully chastised Lisa for being guided by selfish motives in this matter. Adjustments and accommodations must be made as a result of a divorce, the entire point of which is to permit each parent to go on his or her own way. Collingbourne, 204 Ill. 2d at 535. “Within reason, both parties must be permitted to do so, and the child’s best interests must be served within that context.” Collingbourne, 204 Ill. 2d at 535. On the other hand, the trial court’s determination that Carl’s vigor in pursuit of this matter is “predicated on his own selfish desires” does appear to hold water. That said, based on my review, Carl also genuinely loves his children and, amongst a swirl of other motivations, does fear that the move is not in the children’s best interests. However, I find that Carl’s fears are not well founded given the relatively short distance Lisa wants to move.
The last Eckert factors address the noncustodial parent’s visitation. Under Eckert, the trial court must carefully consider the effect the proposed move would have on the visitation rights of the noncustodial parent, because it is in a child’s best interests to have a healthy and close relationship with both parents, as well as other family members. Eckert, 119 Ill. 2d at 327. A court must assess whether a realistic and reasonable schedule can be reached if the move is allowed to proceed. Eckert, 119 Ill. 2d at 327.
Here, Lisa hopes to move to Cedarburg. Cedarburg lies just north of Milwaukee. From Woodridge, the longest time Carl would possibly have to spend traveling to visit the children is about two hours. As the situation now stands, Carl must already travel an hour to visit the children, assuming that Lisa has moved to Lake Villa as she intended to do at the time of the hearing in August. Carl stated that he too intended to move to Lake Villa if the children moved there, so he could be close to them. In Lake Villa, Carl would be an hour away from the children in Cedarburg and an hour away from his job in Woodridge.
Carl has great flexibility in his work schedule, working about 100 days a year as a fireman. Specifically, Carl appears to be concerned that he would no longer be able to pick the children up after school, spend the evening with them at his house in Woodridge, and then return them to Lisa’s home later in the evening. However, in all cases, removal will have some effect on visitation. Collingbourne, 204 Ill. 2d at 532. The essential question is whether a visitation schedule that is both reasonable and realistic can be created. Collingbourne, 204 Ill. 2d at 532. The visitation schedule need not be perfect. In re Marriage of Parr, 345 Ill. App. 3d 371, 380 (2003).
Carl still would be available to visit the children on his days off work. He would be able to participate in almost all of the children’s activities. Carl acknowledged that he would be able to continue participating in just about all of the activities he currently enjoys with the children. Frankly, it does not appear that moving the children to Cedarburg would have any significant impact on the rest of Carl’s visitation schedule. For example, the children still would be able to spend entire weekends at Carl’s house, just as they have done in the past.
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. I am certain that, given Lisa’s requested move in this case, a visitation schedule could be fashioned to preserve Carl’s relationship with his children. Thus, I disagree with the trial court’s conclusion that “there is no proof that there can be formulated a visitation schedule for Mr. DeLeo that can be termed ‘reasonable and realistic.’ ” If a reasonable visitation schedule cannot be established in this case, indeed, it would be a rare occasion that a petitioner could satisfy his or her burden. In fact, when effort is expended to establish a reasonable visitation schedule, close relationships can continue and even be enhanced. Collingbourne, 204 Ill. 2d at 533.
It is true that removal requests must be decided on a case-by-case basis. Eckert, 119 Ill. 2d at 326. Nevertheless, I find it inconsistent and unfair that Lisa’s removal request has been denied when the petitioner’s request in Collingbourne was approved. Similarly situated individuals must be able to look at prior cases for guidance and anticipate that they will be afforded similar treatment. The results of the present case betray this principle.
Finally, I note that although the trial court believed that the children were “confused and unhappy about the prospects” of moving to Cedarburg, Valerie Jencks opined that both Christiana and Tony were emotionally capable of handling the move. The mixed emotions the children have expressed are natural and to be expected, but insufficient to justify denying Lisa’s petition. See Collingbourne, 204 Ill. 2d at 534.
For the aforementioned reasons, I would reverse the trial court’s denial of Lisa’s request for removal and remand for the limited purpose of setting a visitation schedule.