Removal and Visitation by Grandparents
It was an exciting year for parties in divorce cases involving children. The Illinois Supreme Court decided its third removal case and the Second District recreated a way for non-parents to visit.
In May, 2003, the Supreme Court issued its Collingbourne opinion. This is a removal case from the Second District from Kane County.
The Parties have two sons and joint custody. The older son resides with dad and the younger with mom. No explanation of how or why that occurred. Dad has remarried. Mom wants to move to Sharon, Massachusetts, to marry a man. He owns his own business. She will work for him, fewer hours per day than now, and earn more money than she does now. She will not have business travel as she does now. She can be home before and after school with her son. Because of that, he can do sports and other extracurricular activities that he cannot now due to day care and mom’s work.
Mom filed a removal petition. The child, born in 1991 and then age 10, was interviewed by the trial court and said he did not want to move. The trial court granted the removal petition.
Dad appealed, the Second District (we let no child leave northern Illinois) reversed. The Supreme Court took the case and reversed the Second District, affirmed the trial court, permitting the move.
The Second District, in reversing, said that the evidence did not establish a direct benefit to the child, Tyler. It did establish a benefit to the mom, Soryia. The court said that a benefit to the mom does not translate into a direct benefit for Tyler. The court also said that the proposed visitation schedule with Dad would interfere with family and social live in Sharon since much school break time would be in Hampshire, Illinois, with Dad and natural brother. Thus, the court decided the move was not in the best interest of Tyler and reversed.
Dad urged the Supreme Court to determine that a removing parent must establish a direct benefit to the child from the move. The Court refused to do so. It discussed Eckert for two pages; it discussed Smith for a page.
It said “The vast majority of cases from our appellate court have correctly interpreted our decision in Eckert and, in determining the best interests of a child in removal actions, have appropriately considered the potential of the move for increasing the general quality of life for both the custodial parent and the child, including any benefit the child may experience stemming from the parent’s life enhancement.”
The Court said that enhanced economic opportunity alone is not sufficient reason to approve a move out of state, neither is the mere desire of the custodial parent to move to another state.
So, now, for the second time, the Supreme Court says we meant what we said in Eckert, and that the non-custodial parent cannot veto every proposed move. The result for us is no longer to refer parents who wish to remove from the Second District to apartments in Wheeling and to Cook County courts to seek removal. However, after Smith, some of us thought the Supreme Court had made its opinion very clear. Perhaps now the Second District will think so also.
In another case perhaps contrary to the wishes of the Supreme Court, the Second District decided the Sullivan case.
The parties were divorced in 1997. Mom got sole custody of the one child, Samuel, born August 13, 1993. Dad got visitation. Mom petitioned for back child support and unprovided medical insurance. Dad petitioned to have his family exercise his visitation while he was on active military duty. “Eugene’s petition did not specify the statutory basis for his request for relief.” (So there!) The trial court dismissed dad’s petition on subject matter jurisdictional grounds—the court could not grant grandparent visitation.
The Second District said, “The record reveals the Eugene’s petition was essentially a request for a modification of his visitation rights. Section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) provides that a “court may modify an order granting or denying visitation rights of a parent whenever modification would serve the best interests of the child.” 750 ILCS 5/607(c) (West 2002) Thus, the issue becomes whether the trial court could grant Eugene’s requested relief and allow his family to exercise his visitation rights when he was serving overseas in the military.”
This is NOT a petition by grandparents to visit grandchildren. This is a petition by dad to have his relatives exercise his visitation in his militarily required absence. The Appellate Court made that distinction and cited a similar case from the First District, Solomon v. Solomon 319 Ill. App. 619; 49 N.E. 2d 807 ( 1943).
In Solomon, a father inducted into the army and due to be stationed in Oregon, petitioned to have his parents exercise his visitation. The trial court granted the petition. The mother appealed claiming the Court had no such power and the grandparents were emotionally and temperamentally unstable. The First District said the Soldiers’ and Sailors’ Civil Relief Act gave the court power to fashion a way for the father’s relatives to see the child. The Court remanded for a hearing to see if the grandparents “were fit to receive the child in their home as ordered by the court.”
What is the possibility of Sullivan being expanded to include other relatives in addition to grandparents? What is the possibility of the case being expanded to permit collateral relatives to visit if the father is out of town on business or for education but not in the military? Probably yes to the first and no to the second. The SSCRA is really the basis for the decision as well as the desire to not hurt military folks.
IRMO Sullivan, 342 Ill.App.3d 560; 795 N.E.2d 392; 277 Ill.Dec. 25 (2003)
IRMO Collingbourne, 204 Ill.2d 498, 791 N.E.2d 532, 274 Ill.Dec. 440 (2003)
IRMO Collingbourne, 332 Ill.App. 3d 665, 774 N.E. 2d 448 (2002)
IRMO Eckert, 119 Ill. 2d 316, 518 N.E. 2d 1041, 116 Ill.Dec. 220 (1988)
IRMO Smith, 172 Ill. 2d 312, 665 N.E. 2d 1209 216 Ill. Dec. 652 (1996)
