delivered the opinion of the court.
This appeal is taken by defendant from an order denying the father’s petition for change of custody of a minor child twelve years of age and for other relief.
The parties were divorced on June 21, 1956, and the care, custody, and control of Camille Maureen Richton, then six years of age, was given to the mother. The decree provided, amongst other things, that the defendant father shall have all reasonable visitation rights; that in the event the mother elected to remove the child permanently from the jurisdiction of the court, the defendant was entitled to have custody of Camille for a period of three months during the usual and customary vacation period, and that the parents “shall have alternate annual custody” of the child during the Christmas vacation period, the transportation to be borne equally between them. Subsequently, a petition was filed by defendant concerning visitation rights and an order was entered on December 6, 1956, providing alternate weekend visitation and alternate holiday visitation to defendant, and on plaintiff’s petition permitted her to take the child to California from December 20, 1956, to December 30, 1956. Thereafter, the question of visitation and other matters were again put in issue by the father’s petition and this matter and other controversies between the parties were referred to Master in Chancery Nathan M. Cohen, who, in part, recommended on July 30, 1959, “that except for vacation period during which either of the parties may in accordance with any modification of the Decree entered as a result of this report, be permitted to take the child on vacation trips, neither party shall remove the child from the State of Illinois without prior order of Court permitting such removal.” These findings were later approved by a general order of Judge Ezra Clark which was entered on June 27, 1961, and the exceptions of the mother on this point were overruled.
On December 22, 1961, Beverly Richton filed her petition to remove Camille to California setting forth that it would be for the best interest of the child, as well as being better for the petitioner’s welfare, that she be permitted to remove the child to California in accordance with the decretal provision for that purpose. In answer to the petition, the father’s answer, filed on January 24,1962, set forth the Master’s recommendations and alleged that Camille was now twelve years of age and attended the North Shore Boarding School where she remains overnight except for weekends and vacations when she lives alternately with one parent or the other. The answer also alleged that it was in the child’s best interest not to interrupt her schooling and further that the father would be denied his alternate weekend visitations. The answer further alleged that the mother was using the child as a pawn and had previously threatened to institute proceedings to remove Camille to California and that on August 23, 1961, she sent him the following telegram “. . . [p]ursuant to our phone conversation at 7:45 p. m. tonight in which I demand return of Camille immediately and your refusal to do so I am requesting my attorney to institute proceedings for a request to leave the State with Camille. Said circumstances will be outlined in petition.”
The mother, by her reply filed on January 24, 1962, alleged that the transcript of testimony taken by Master Cohen revealed that at no time was there a petition pending or testimony introduced for the purpose of modifying the rights granted to the plaintiff to remove the child from the State of Illinois, and that the Master’s fecommendation on that point was merely dictum. The mother further denied that the child remained at school overnight except on occasions of emergency or occasionally at the child’s request and that the child would have no difficulty making new friends in California. The mother denied she was using the child as a pawn and alleged that one of the prime factors in the decree was her right to remove the child to California where she formerly resided. On February 14,1962, this matter came on for hearing before Judge Daly who entered an order continuing the hearing on plaintiff’s petition to permanently remove the child from the State of Illinois, to June 7,1962.
While the aforementioned proceedings were pending the father filed a petition on April 11, 1962, in which after realleging the matters heretofore mentioned, he alleged that Judge William V. Daly, on January 24, 1962, ordered the mother to complete the discovery deposition; that on February 14, 1962, Judge Daly, after examining the pleadings and after hearing argument of counsel, stated he would not interrupt the child’s schooling at that time and therefore would not then permit the mother to take the child to California; that on April 2, 1962, without any knowledge on his part, the plaintiff mother obtained a transcript of Camille’s credits from the North Shore School and upon information and belief he believes she went to California with Camille; that' the plaintiff, did not intend to return Camille to the State of Illinois in disregard of the orders of court; that the plaintiff is not a fit and' proper person to have the care, custody, control and education of Camille and prayed that the decree be modified by giving custody of the child to the defendant and that the plaintiff be held in contempt of court for removing the child out of the State of Illinois, contrary to the order of court;
On April 13, 1962, an order was entered by Judge Daly directing the appearance of plaintiff in court on April 19, 1962, and to show cause why she should not be held in contempt of court'by reason of her failure ánd refusal to comply with the order of that court entered therein on June 27, 1961, approving the recommendation contained in the Master’s Bépor't that “neither party shall remove the child from the State of Illinois without, prior order of court permitting such removal.” On April 19,1962, Judge Daly ordered each party to file briefs and continued the matter to May 4, 1962. The plaintiff answered the petition and alleged she had the right to remove the child under the decree for divorce.
The plaintiff contends that she had the legal right granted to her by the divorce decree to remove the child from the State of Illinois “and the fact that she at one time misapprehended her rights and filed a petition asking for that which she already had, did not alter her rights. There was never an order modifying the decree and divesting the plaintiff of the right of removal.”
Plaintiff properly argues that the power of a Master in Chancery is ministerial and not judicial. He cannot make recommendations on matters not referred to him. Almar Forming Mach. Co. v. F. & W. Metal Forming Mach. Co., 301 Ill App 591, 23 NE2d 229.
It is argued that the only matters referred to the Master in Chancery were matters relating to an alleged change in defendant’s income, defendant’s petition relating to visitation and return of personal property and plaintiff’s petition for a rule to show cause on the allegations of plaintiff that the defendant failed to comply with the orders and the decree of divorce; therefore the Master had no jurisdiction to recommend a modification of the divorce decree wherein the plaintiff was given the right to remove the child permanently from Hlinois.
The Master saw and heard many witnesses, include ing the parents, and then made a comprehensive report on July 30, 1959, which contained a summary of the evidence as well as his conclusions and recommendations. With regard to visitation the Master specifically found:
“(1) The child of the parties, Camille, is nine years of age.
(2) The distance between the residence of the mother where Camille resides and that of the father, defendant herein, is 35 to 40 miles.
(3) The parties herein have bickered and quarreled over visitation to the inevitable detriment of the welfare of the child, Camille, and have permitted animosity toward one another to take precedence over the unselfish devotion owed to the child by each of the parties hereto.
(4) Both parties are fit and proper parents and each should be permitted to the enjoyment of the child’s company.
(5) It is essential to the well-being of the child that she be permitted ample periods in the company of both parents to the end that the child may recognize and appreciate the affection and devotion of both parents.”
The Master also recommended, in great detail, the best method of visitation by the parents, including alternating visitations on birthdays, religious and national holidays when the child is out of school and many other respective visitation rights by the parents. The Master concluded and recommended “that except for vacation periods during which either of the parties may, in accordance with any modification of the Decree entered as a result of this report, be permitted to take the child on vacation trips, neither party shall remove the child from the State of Illinois, without prior order of court permitting such removal.” (Emphasis ours.) The plaintiff filed objections to this report which included an objection to the last aforementioned quoted recommendation of the Master and the objections to the report were heard as exceptions by Judge Ezra Clark.
An order was entered on June 27, 1961, by Judge Clark (which after reciting that the parties were present, and the court having read the Master’s Report and objections thereto and having heard arguments of counsel) approved the Master’s Report with certain exceptions that do not bear on the controversy here. No appeal was taken from that order. We think it fair to conclude from the record that all of the matters recommended by the Master and ordered by the court relating to visitation was subsequently complied with by the parties.
The record shows that after the entry of the divorce decree the visitation rights of the parties were radically changed to meet the changed circumstances of the parties. As concerns custody of the children, even the decree for divorce is subject to modification as the child’s best interest demands. Tosh v. Jones, 1 Ill App2d 215, 117 NE2d 307. No agreement of the parties can control the courts when they have before them questions determining the welfare of children within their jurisdiction. Bailey v. Bailey, 157 Ill App 74. The recommendation by the Master to modify the decree, requiring the plaintiff mother to get prior court permission before taking the child out of Illinois, was necessarily interwoven with the new visitation rights of the parties, and, in our opinion, this recommendation was a proper matter to be considered by the Master under the reference to him.
The record discloses that the matter proceeded to trial on May 4,1962, before Judge Canel. The Chancellor, at the outset and before any testimony was introduced, ruled that the plaintiff had an absolute vested right under the decree to take the child out of the State of Illinois. The defendant therefore was not permitted to introduce testimony bearing on this subject nor was plaintiff required to explain why she abruptly took the child out of school during a midterm, without notice to the father and without court order. The court ruling was predicated on the proposition that this evidence “did not go to the fitness or unfitness of the mother.” We disagree with this conclusion. The Chancellor stated that the Master in Chancery went beyond the jurisdiction of the reference when he recommended that the plaintiff could not remove the child from the State of Illinois without prior approval of the court. The court went on to say that, in his opinion, the Master had no right to even discuss the matter, “because here is a decree without a reservation.”
At the conclusion of other testimony given by defendant and by witnesses on his behalf, no witnesses appearing for the plaintiff, the court entered an order on May 7, 1962, which is here appealed. That order recites that after considering the evidence, examining the pleadings and the transcript of testimony before the Master, the court found “that the Master in Chancery did not have the jurisdiction to enter any orders to modify the decree of divorce, insofar as under the decree Beverly Richton did not require written consent or an order of court to remove the said minor child, Camille, from the State of Illinois.” The court vacated the order requiring the plaintiff to produce the minor child on April 19, 1962, and dismissed the rule to show cause and discharged the plaintiff on the rule; the order denied the request for change of custody and the defendant’s request that the minor child be returned to the State of Illinois; the request for fees by plaintiff’s counsel for defending the petition was continued to May 14, 1962, on which date the court, after hearing testimony, ordered defendant to pay plaintiff’s counsel the sum of $1207.5'0, as fees, and $146.70 for court reporter’s fees. The defendant also appeals this order.
We have carefully examined the record of proceedings which was certified by Judge Daly and have concluded that the plaintiff took the minor child out of the jurisdiction of the State of Illinois, contrary to the order of court. Plaintiff’s counsel insists that the divorce decree gave the plaintiff the right to remove the child permanently from Illinois and that the removal has no bearing on the question of fitness. The child was six years old when the decree was entered and was almost twelve years old when the controversy before ns took place. She was then in the last half of the seventh grade of the North Shore School which she had attended for five years. She was doing well at school and had many friends. Due to the schedule which her parents followed she was able to spend about half of her free time with either parent alternately. When the plaintiff abruptly took the child out of school and out of Illinois she knew of the Master’s findings as heretofore mentioned, and that the exceptions to his report were denied, and that an order was entered approving his report. The plaintiff also was present in court on February 14, 1962, to prosecute her petition seeking a court order permitting her to remove the child permanently to California where she desired to establish her residence. The provision of the divorce decree reciting that the plaintiff had the right to remove the child from Illinois was fully presented and argued by plaintiff’s counsel at this hearing before Judge Daly. After considering the petition of plaintiff and the answer filed thereto Judge Daly ruled on her petition and said, “I think it would be best for the child, at least during the rest of the school year, not to send her to other surroundings or to another school where the child would have to readjust in the middle of the school year. I think the best thing to do in this matter is to allow this child to finish this grade and then decide whether or not we can look in favor upon any circumstances which allow the child to be taken to another jurisdiction. That is the decision of the court” (Emphasis ours.) When Judge Daly advised the parties that he had not decided as yet whether plaintiff could take the child to California, the plaintiff’s counsel informed the court he would present evidence at the next hearing to show that the child would not be harmed by a change of residence to California. The plaintiff then advised the court that the school term ended on June 22. Thereupon plaintiff’s motion for leave to take the child out of school and out of Illinois was continued to June 7. Less than three weeks after the aforementioned hearing took place the plaintiff took the child out of school and rómoved her to California without court permission or notice to the child’s father.' Judge Daly then ordered the appearance of plaintiff in court on April 19, 1962, and to show cause why she should not be held in contempt of court.
The authority to make orders concerning the custody of minor children continues until the child attains his or her majority. Kramp v. Kramp, 2 Ill App2d 17, 117 NE2d 859. During the time when the child’s custody is under the control of the court, the custody order may from time to time be revised, altered or modified by the court as the best interests o,f the child may demand and as may appear reasonable and proper. ILP Divorce § 217 ,* Nye v. Nye, 411 Ill 408, 105 NE2d, 300. A decree fixing the custody of a child is final only upon the conditions then existing. Thomas v. Thomas, 233 Ill App 488. The changed conditions necessary for the modification of the original custody order are those which bear upon the fitness of the custodial parent and the interests of the child, Bulandr v. Bulandr, 23 Ill App2d 299, 162 NE2d 585. The custodial parent therefore has duties to the court, to the other parent and to the child. In the instant case there appears to have been at the least a failure on the part of the custodial parent to carry out her duties to the court and there may have been a failure to fulfill her responsibilities to the other parent and to the child as well.
The conduct of the plaintiff, in our opinion, bears upon the fitness of the plaintiff to have the custody of the minor child. Unfitness, however, does not follow conclusively from a failure to comply with the order or orders of the court. Bulandr v. Bulandr, 23 Ill App2d 299, 162 NE2d 585. Therefore, nothing we have expressed in this opinion should he considered as determining the question of the fitness of the plaintiff to continue to have custody of the child.
The plaintiff should have been required to answer the rule to show cause and she should defend her actions in taking the child out of the State of Illinois without first obtaining a court order to do so. It would be a travesty on justice to say that a litigant could disobey an order of the court of which the litigant was well aware. The defendant was not permitted to present testimony bearing upon the described actions of the plaintiff. The Chancellor thus committed reversible error in declining to hear this testimony before ruling on the fitness of the mother to have custody of the minor child of the parties and before ruling on the matter of attorney’s fees.
For the reason stated the orders of the Superior Court entered on May 7 and May 14, 1962, including the order awarding fees to the attorney for the plaintiff, are hereby reversed and the cause is remanded with directions to proceed in a manner consistent with the views expressed.
Reversed and remanded.
MURPHY, J., concurs.