Fisher v. Waldrop ( 2006 )

Docket No. 100443.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
VINCENT FISHER, Appellee, v. JILL WALDROP, Appellant.
Opinion filed April 20, 2006.
JUSTICE FREEMAN delivered the judgment of the court,
with opinion.
Justices McMorrow, Fitzgerald, and Karmeier concurred in
the judgment and opinion.
Chief Justice Thomas dissented, with opinion, joined by
Justice Kilbride.
Justice Garman took no part in the decision.
OPINION
This appeal involves amendments to the Illinois Parentage
Act of 1984 (750 ILCS 45/1 et seq. (West 2002)) concerning
removal of children from Illinois.
BACKGROUND
Vincent Fisher and Jill Waldrop 1 never married, but were
involved in a relationship for several years. They had a child,
Callie, who was born in February 1998. In August 2000 Fisher
and Waldrop ended their relationship, and in May 2001 Fisher
filed a petition to establish the parent/child relationship.
Waldrop admitted that Fisher was Callie=s father, and in
December 2002 the circuit court of Sangamon County entered
an order to that effect. The court awarded custody of Callie to
Waldrop, but also set forth an extensive and detailed visitation
schedule for Fisher. In its order, the court Adecline[d] to impose
geographic restrictions on Jill=s choice of residence.@ In its
order disposing of both parties= motions for reconsideration, the
court specified that A[i]n the event [Waldrop] decides to move
from her present residence, whether that move be intrastate or
interstate, the issue of visitation between [Fisher] and Callie will
be re-visited based upon the circumstances that exist at that
time.@
In December 2003, approximately a year after the order
establishing paternity, Fisher filed a petition for temporary and
permanent injunction pursuant to section 13.5 of the Parentage
Act (750 ILCS 45/13.5 (West 2004)). In that petition Fisher
alleged that Waldrop had notified him that she planned to move
to Indiana with Callie and her new husband in 2004. Fisher
asserted that Waldrop had not sought permission from the
court to remove Callie from the state, as he contended she was
required to do, and argued that to permit Waldrop to remove
Callie from Illinois would cause irreparable harm to his
relationship with Callie and would not be in Callie=s best
interests. Fisher asked the court to enjoin Waldrop from
removing Callie from Illinois.
Shortly thereafter, Waldrop filed a petition pursuant to
section 609 of the Illinois Marriage and Dissolution of Marriage
Act (the Marriage Act) (750 ILCS 5/609 (West 2004)) for leave
to remove Callie from Illinois. In the petition Waldrop noted that
she had remarried and her new spouse had found employment
in Indiana despite having been unable to do so in Illinois.
Accordingly, she argued, it would be in Callie=s best interests to
permit Waldrop to remove her from Illinois. However,
approximately a week after filing her petition for leave to
remove, Waldrop moved to dismiss the petition. In the motion
to dismiss, Waldrop noted that she and Fisher were never
1
During the pendency of these proceedings Waldrop changed her last
name to Kitzke, adopting the last name of the man she married in July 2003.
married, and asserted that A750 ILCS 45/13.5 governs petitions
for removal in paternity cases, and it is the Petitioner=s burden
of proof to show that injunction is appropriate.@
The court held a hearing on Fisher=s petition in June 2004.
At the outset of the hearing the court ruled that as a legal
matter, the burden was on the person objecting to removalBin
this case, FisherBto establish that removal would not be in the
child=s best interests. The hearing lasted several days. Not only
did Waldrop and Fisher both testify, they also introduced
numerous exhibits and expert testimony regarding the effect on
Callie of the proposed move.
Shortly after the conclusion of the hearing, the court
rendered its decision in a lengthy written order. The court found
that both Waldrop and Fisher were responsible for their
acrimonious relationship with each other, but also found that
A[b]ut for their relationship with one another, both [Fisher] and
[Waldrop] are good, loving, effective parents.@ Relevant to our
disposition of this case is the following portion of the court=s
order:
AIf the court were only to consider what is in the best
interests of Callie Fisher, the court would conclude that
it is not in the best interests of Callie that she be
removed from the State of Illinois. The move from
Springfield, Illinois to Richmond, Indiana will separate
Callie from a parent with whom she has a close, loving
relationship; she will be removed from the home in
which she has been raised since shortly after her birth;
her contact with her extended family, with whom she
has a close relationship, will be substantially curtailed;
she will move to a location where she has no extended
family or friends; she will be subjected to a difficult
commute in order to visit her father and other extended
family members; she is moving to a community that
does not have the resources that Springfield has; and
strained communications between two parents (which
the court attributes to each parent) will become almost
impossible. The court also has substantial concern
about how Callie will be cared for in Richmond when
[Waldrop] is away from home for her craft shows which
-3-
are her livelihood. The court has substantial concerns
about the nature of the relationship between Callie and
[Waldrop=s new husband]. By virtue of this Order Callie
will have to go through a period of adjustment with a
new step-parent in her home as well as a period of
adjustment to a new community, in a new school,
meeting new friends, all of which will have to be
accomplished without her father or her extended family
with whom she is very close and on whom she relies for
emotional support. These problems were foreseeable
when [Waldrop] elected to marry a man who had not
lived in Illinois prior to the marriage and who planned to
move the family to Georgia after marriage. It is a finding
of this court that one of [Waldrop=s] motives to marry
and move away from Springfield was to separate herself
from [Fisher]. The court also finds that [Fisher] is partly
responsible for this result based upon his conduct
towards [Waldrop].
***
The court concludes from the evidence that indirect
benefits to Callie require the court to deny the
Complaint for Injunctive Relief and thereby permit
[Waldrop] to remove Callie to the State of Indiana.
[Waldrop=s new husband] was not able to find
employment in Illinois. The job he has found in Indiana
is a well paying job. [Waldrop] is pregnant, so that if the
court allows the Injunction the unborn baby will be
separated from his father, balanced against a granting
of the injunction which will result in Callie being
separated from [Fisher]. No matter what the court
orders one child will lose contact with a parent. In this
circumstance the benefit to [Waldrop] that indirectly
benefits Callie is sufficient to warrant the denial of the
Complaint for Injunctive Relief.@
Fisher appealed. In proceedings before the appellate court,
Waldrop=s appellee brief was due on December 9, 2004. That
date passed without Waldrop having filed a brief.
Approximately two weeks later, on December 27, Waldrop=s
new counsel filed a motion requesting additional time to file
-4-
Waldrop=s appellate brief. Although Fisher made no objection,
the appellate court denied Waldrop leave to file a late brief. In
its opinion disposing of the case, the appellate court noted that
Waldrop had Afailed to file a brief,@ but stated that Athe claimed
error is such that we can decide this appeal on the merits
without the aid of [Waldrop=s] appellee brief.@ 355 Ill. App. 3d
1130, 1137, citing First Capitol Mortgage Corp. v. Talandis
Construction Corp, 63 Ill. 2d 128, 133 (1976).
The appellate court reversed and remanded, directing the
circuit court to grant Fisher a permanent injunction. 355 Ill.
App. 3d 1130. The court noted that the legislature had
amended the Parentage Act in 2003 to deal with removal, and
found that the amendments were intended to achieve two
ends: to give never-married noncustodial parents a way to
forestall removal while custody issues were pending; and to
incorporate section 609 of the Marriage Act into the Parentage
Act, Athereby requiring custodial parents to seek leave to
remove a child from the state under the standards set forth in
section 609.@ 335 Ill. App. 3d at 1139. The court held that the
custodial parent had the burden of proving that removal was in
the child=s best interests in Parentage Act proceedings, just as
they would in Marriage Act proceedings pursuant to section
609, and the circuit court erred by placing the burden of proof
on Fisher, the noncustodial parent. The court further ruled that
the circuit court=s order denying the injunction was against the
manifest weight of the evidence because the court had found
that removal was not in Callie=s best interests. 335 Ill. App. 3d
at 1139-40. Finally, the appellate court held that the circuit
court had erred in granting Waldrop permission to remove
Callie from Illinois, because there was no petition for removal
pending before the court.
Justice McCullough dissented. 335 Ill. App. 3d at 1142-43
(McCullough, J., dissenting). He agreed with the majority that
section 609 of the Marriage Act controlled, but did not believe
that the circuit court had evaluated Callie=s best interests for
purposes of making a section 609 determination. He would
have remanded for the circuit court to perform such an
evaluation rather than ordering the circuit court to grant a
permanent injunction.
-5-
We granted Waldrop=s petition for leave to appeal. See 155
Ill. 2d R. 315(a).
ANALYSIS
Waldrop raises two arguments before this court. She
argues first that the appellate court violated her due process
rights when the court refused to allow her to file a late appellate
brief. In the alternative, she argues that the appellate court=s
construction of the Parentage Act was faulty, specifically that
the court erred in holding that a custodial parent must file a
petition for removal before removing a child from the state and
that the custodial parent has the burden of proving that
removal would be in the best interests of the child.
We decline to address Waldrop=s due process argument
because it is moot. Whatever injury Waldrop may have
suffered in being prevented from filing her brief with the
appellate court was cured when this court granted her leave to
appeal. Before this court Waldrop may raise any and all
arguments that she could have presented to the appellate
court, and we give the appellate court=s decision no deference
in resolving the issues before us. There is no other relief we
could grant her even if we were to rule in her favor, which
renders the issue moot. See In re D.S., 217 Ill. 2d 306, 320
(2005) (AAn issue is rendered moot when an intervening event
makes it impossible for the court to grant effective relief to the
complaining party@). Thus even if we were to agree that the
appellate court erred in refusing to accept a late brief from a
custodial parent in a case of first impression involving a minor
child, the fact that Waldrop may now make any and all
arguments she could have made in the appellate court would
render any such error inconsequential. See D.S., 217 Ill. 2d at
321.
Accordingly, we turn to the merits of the case. The question
we must answer is what procedures must be followed in a case
brought under the Parentage Act when a custodial parent
seeks to remove a child from Illinois. Waldrop argues that in
proceedings under the Parentage Act the custodial parent may
remove a child from Illinois unless the noncustodial parent files
-6-
for and obtains an injunction pursuant to section 13.5. She
argues that the burden is on the noncustodial parent to show
that removal would not be in the child=s best interests, and that
the appellate court erred in holding otherwise. Fisher
advocates for a different interpretation of the statutory scheme.
He contends that custodial parents now must seek leave of
court before removing a child from Illinois in actions brought
under the Parentage Act just as they must in proceedings
under the Marriage Act. He argues that section 13.5 is only
intended to permit the noncustodial parent to enjoin removal
until a custodial parent=s petition for removal can be dealt with
on the merits.
This dispute turns on statutory construction. The principles
which guide our analysis are familiar. Our standard of review is
de novo, and our primary objective is to give effect to the
legislature=s intent. The best indication of legislative intent is
the statutory language, given its plain and ordinary meaning.
Thus, when the statutory language is clear, it must be given
effect without resort to other tools of interpretation, although we
always presume that the legislature did not intend to create
absurd, inconvenient or unjust results. In re R.L.S., 218 Ill. 2d
428, 433 (2006).
Courts should consider a statute in its entirety, keeping in
mind the subject it addresses and the legislature=s apparent
objective in enacting it and avoiding constructions which would
render any term meaningless or superfluous. Andrews v. Kowa
Printing Corp., 217 Ill. 2d 101, 109 (2005); Stroger v. Regional
Transportation Authority, 201 Ill. 2d 508, 524 (2002). Moreover,
this court has a duty to construe a statute in a manner that
upholds its validity and constitutionality if it reasonably can be
done. In re R.L.S., 218 Ill. 2d at 433.
Before 2003, the Parentage Act did not contain any
provisions relating specifically to the issue of removal of
children from Illinois. Although section 609 of the Marriage Act
speaks directly to the situation, 2 our appellate court does not
2
Section 609 provides that when a party with custody of a minor child
seeks to remove the child from Illinois it is incumbent upon the party
seeking removal to prove that removal is in the child=s best interests. 750
-7-
import provisions of the Marriage Act into Parentage Act cases
absent express statutory authority. See, e.g., In re Stella, 339
Ill. App. 3d 610, 615 (2003) (Aonly those Marriage Act relevant
factors and standards expressly embraced by the Parentage
Act may be applied by trial judges in parentage cases@). Before
2003 no provision of the Parentage Act referenced or
incorporated section 609 of the Marriage Act, and accordingly,
the appellate court never applied the requirements of section
609 to the issue of removal in Parentage Act proceedings. See
In re Adams, 324 Ill. App. 3d 177, 180 (2001) (circuit court has
no inherent power to enjoin custodial parent from removing
child from state in parentage actions); In re Parentage of
Melton, 314 Ill. App. 3d 476, 478 (2000) (same); In re
Parentage of R.M.F., 275 Ill. App. 3d 43, 50 (1995) (ABecause
the Parentage Act contains no provisions requiring that actions
for removal be resolved pursuant to section 609 of the
Marriage Act, we find that section 609 of the Marriage Act is
not implicitly incorporated into the Parentage Act@). 3
However, in 2003 the legislature amended the Parentage
Act to address removal. Pub. Act 93B139, '5, eff. July 10,
2003. See 750 ILCS 45/13.5, 14, 16 (West 2004). Section 14
deals with initial judgments. After the 2003 amendments, it
provides in relevant part as follows (additions emphasized):
AThe judgment shall contain or explicitly reserve
provisions concerning any duty and amount of child
support and may contain provisions concerning the
custody and guardianship of the child, visitation
privileges with the child, the furnishing of bond or other
security for the payment of the judgment, which the
court shall determine in accordance with the relevant
factors set forth in the Illinois Marriage and Dissolution
ILCS 5/609(a) (West 2004).
3
It is fair to note that although the appellate court did not read section
609 of the Marriage Act into Parentage Act proceedings prior to 2003, the
court held that a best-interests hearing was nonetheless required before
removal because of the effect that removal would have on the noncustodial
parent=s visitation. See, e.g., In re R.M.F., 275 Ill. App. 3d at 50-51.
-8-
of Marriage Act and any other applicable law of Illinois,
to guide the court in a finding in the best interests of the
child. In determining custody, joint custody, removal, or
visitation, the court shall apply the relevant standards of
the Illinois Marriage and Dissolution of Marriage Act,
including Section 609.@ (Emphases added.) 750 ILCS
45/14(a)(1) (West 2004).
Section 16 deals with modification of judgments, and
underwent similar modifications:
AThe court has continuing jurisdiction to modify an
order for support, custody, visitation, or removal
included in a judgment entered under this Act. Any
custody, visitation, or removal judgment modification
shall be in accordance with the relevant factors
specified in the Illinois Marriage and Dissolution of
Marriage Act, including Section 609.@ (Emphases
added.) 750 ILCS 45/16 (West 2004).
Finally, section 13.5 of the Parentage Act, added in 2003,
provides in pertinent part:
A(a) In any action brought under this Act for the initial
determination of custody or visitation of a child or for
modification of a prior custody or visitation order, the
court, upon application of any party, may enjoin a party
having physical possession or custody of a child from
temporarily or permanently removing the child from
Illinois pending the adjudication of the issues of custody
and visitation. When deciding whether to enjoin removal
of a child, the Court shall consider the following factors
including, but not limited to:
(1) the extent of previous involvement with the
child by the party seeking to enjoin removal;
(2) the likelihood that parentage will be
established; and
(3) the impact on the financial, physical, and
emotional health of the party being enjoined from
removing the child.
-9-
(b) Injunctive relief under this Act shall be governed
by the relevant provisions of the Code of Civil
Procedure.@ 750 ILCS 45/13.5 (West 2004).
As previously noted, Waldrop contends that section 13.5 is
the operative section, and contends that unless a noncustodial
parent files for an injunction pursuant to section 13.5, the
Parentage Act does not restrict a custodial parent=s ability to
remove a child from the state. We disagree.
Sections 14 and 16 of the Parentage Act clearly refer to
removal as an issue to be addressed in the initial judgment and
in judgment modifications. See 750 ILCS 45/14, 16 (West
2004). Moreover, both sections specify that the court=s
determination on removal is to be made in accordance with
section 609 of the Marriage Act. Section 609 specifies that the
court Amay grant leave@ to a custodial parent to remove a child
from IllinoisBthus the parent must first request leaveBand the
burden is on the custodial parent to prove that removal would
be in the child=s best interests. 750 ILCS 5/609(a) (West 2004).
See In re Marriage of Roppo, 225 Ill. App. 3d 721, 726 (1991)
(under Marriage Act, ACourt approval is required where minor
children subject to the jurisdiction of the court are to be
removed permanently from the State@).
The language of section 13.5 does not support Waldrop=s
position. Section 13.5 permits the court to enjoin the custodial
parent Afrom temporarily or permanently removing the child
from Illinois pending the adjudication of the issues of custody
and visitation.@ (Emphasis added.) 750 ILCS 45/13.5(a) (West
2004). It is clear that the injunctions permitted by section 13.5
are intended to be temporary in nature, keeping the child in
Illinois only until the court can conduct a hearing on the merits
of a removal petition.
Moreover, Waldrop=s position would render the changes to
sections 14 and 16 mere surplusage, which would violate one
of our cardinal rules of statutory construction. See Andrews,
217 Ill. 2d at 109; Stroger, 201 Ill. 2d at 524. If, as Waldrop
argues, a custodial parent can remove a child from Illinois
unless the noncustodial parent files for an injunction pursuant
to section 13.5, the changes the legislature made to sections
14 and 16 would be meaningless and utterly without effect. No
-10-
custodial parent would ever seek an order allowing removal if
he or she automatically had the power to remove the child
simply by virtue of being the custodial parent, as Waldrop
argues.
Additionally, Fisher=s suggested construction of the
amendments to the Parentage Act has the virtue of greater
similarity to the Marriage Act. Under the Marriage Act, as
previously noted, a custodial parent must petition for leave of
court before removing a child from Illinois, and the burden is on
the custodial parent to show removal is in the child=s best
interests. 750 ILCS 5/609 (West 2004). However, the Marriage
Act also provides that in all proceedings thereunder, any party
may request a preliminary injunction to, inter alia, Aenjoin[ ] a
party from removing a child from the jurisdiction of the court.@
750 ILCS 5/501(a)(2)(ii) (West 2004). The legislative history
indicates that the legislature=s intent was to grant a parent in a
Parentage Act action rights similar, if not identical, to those of a
parent in a Marriage Act action. See 93d Ill. Gen. Assem,
House Proceedings, May 27, 2003, at 70 (statements of
Representative Black) (AAt least it gives the noncustodial
parent a, I won=t say the same right, but a similar standing to
go to court and question the removal of the child or children, as
the case may be, to another state if there=s no apparent reason
for the move@).
For all these reasons, we conclude that Fisher=s reading of
the Parentage Act is correct. That is, when a custodial parent
intends to remove a child from Illinois he or she must request
leave of court, and the burden is on the custodial parent to
show that removal would be in the child=s best interests. It is
not incumbent on a noncustodial parent to request an
injunction pursuant to section 13.5 in order to force the
custodial parent to request leave of court before removing
children from the state regardless of whether an injunction has
been sought, and a custodial parent who removes children
from the state without having first at least requested leave
could potentially be subjected to contempt proceedings. If the
noncustodial parent does seek an injunction, the burden is on
the noncustodial parent to establish that he has no adequate
remedy at law and will suffer irreparable harm without
-11-
injunctive relief (see Sadat v. American Motors Corp., 104 Ill.
2d 105, 115 (1984)), paying specific but not exclusive attention
to the factors listed in section 13.5 of the Parentage Act (750
ILCS 45/13.5(a) (West 2004)).
Waldrop objects that this reading of the Parentage Act
leads to the preposterous result of requiring two separate
hearings with two different burdens of proof on essentially the
same issue. Waldrop notes that injunctions under section 13.5
are Agoverned by the relevant provisions of the Code of Civil
Procedure@ (750 ILCS 45/13.5(b) (West 2004)), and that
traditionally the burden is on the party seeking an injunction.
See Sadat, 104 Ill. 2d at 115. Thus at the hearing on the
injunction, Waldrop contends, the burden is on the
noncustodial parent to prove that removal is not in the child=s
best interests. It does not make sense, Waldrop argues, that
the legislature would require that the parties and court then
perform an abrupt about-face and engage in another hearing at
which the same best-interests issue is litigated, this time with
the burden on the custodial parent.
First, as we noted above, preliminary injunctions against
removal and best-interest hearings on removal can both occur
in Marriage Act proceedings. See 750 ILCS 5/501(a)(2)(ii), 609
(West 2004). Accordingly, we see no reason why the two could
not coexist peacefully in the Parentage Act. More
fundamentally, however, we disagree with Waldrop that the two
hearings deal with precisely the same issue. It is clear that at
the hearing on the removal the sole issue is the best interests
of the child. See 750 ILCS 5/609(a) (West 2004). However, at
the hearing on the injunction, the focus is more on the parents=
interests. Although other factors may be considered, the three
factors which section 13.5 specifically requires the circuit court
to take into account all involve the parents: the extent to which
the party opposing removal has previously been involved with
the child; the likelihood that parentage will be established; and
the impact that an injunction would have on the custodial
parent. See 750 ILCS 45/13.5(a)(1) through (a)(3) (West
2004). This makes sense, because at the injunction stage the
noncustodial parent is not seeking to permanently prevent
removal. Rather, the noncustodial parent is asserting that his
-12-
or her interest in and relationship with the child outweighs any
burden that an injunction may impose on the custodial parent
and, consequently, the status quo should be maintained until
the custodial parent shows that the move is truly in the child=s
best interests.
Of course the circuit court should not turn a wholly blind eye
to the child at the hearing on the injunction. The best interests
of the child are always paramount in removal actions. In re
Marriage of Collingbourne, 204 Ill. 2d 498, 521 (2003), citing In
re Marriage of Eckert, 119 Ill. 2d 316, 325 (1988). However, at
the hearing on the injunction section 13.5 of the Parentage Act
clearly places the focus on whether the noncustodial parent
has an interest of sufficient magnitude to warrant delaying
removal until the custodial parent can prove that removal is in
the child=s best interests. Rather than dragging out the
proceedings by turning the hearing on the injunction into a full-
blown best-interests hearing, we believe that the legislature
determined that at this stage the child=s interests will be better
served by focusing on the parents= interests, so that the
injunction issue may be resolved quickly. This is important to
clarify: the injunction hearing is not the equivalent of the best-
interests hearing, and a circuit court=s order denying an
injunction is not tantamount to an order granting leave to
remove. It is not impossible that a circuit court could conclude
that a noncustodial parent was not entitled to an injunction but
also ultimately determine that the custodial parent=s proposed
removal of the child would not be in the child=s best interests.
In this case, Fisher filed a motion for injunction pursuant to
section 13.5 of the Parentage Act and Waldrop never sought
leave to remove. But in ruling on Fisher=s injunction the court
focused almost exclusively on the child=s best interests. The
court essentially proceeded as if Waldrop had filed for leave to
remove, but with the critical difference of placing the burden on
Fisher of proving that removal would not be in Callie=s best
interests. Moreover, the circuit court=s conclusion was
confusingBthe court clearly stated that removal would not be in
Callie=s best interests, but then ruled that removal would be
allowed because of the indirect benefit Callie would receive if
Waldrop were permitted to move. Although benefit to the
-13-
custodial parent and the child=s household are entirely proper
matters to consider, they are factors in the circuit court=s
determination of what is in a child=s best interests, not separate
factors that overrule what would otherwise be in a child=s best
interest. See In re Marriage of Collingbourne, 204 Ill. 2d 498.
Not only is the circuit court=s ultimate determination
regarding whether the move would be in Callie=s best interests
somewhat ambiguous, the circuit court=s findings do not
provide a clear-cut answer as to whether the court would have
granted Fisher an injunction if the court had focused on that
issue. One of the listed factors is clearly satisfied, as paternity
has already been admitted and established. See 750 ILCS
45/13.5(a)(2) (West 2004). The circuit court found Fisher to
have had significant previous involvement and a strong
relationship with Callie, indicating that another factor also
would weigh in favor of the injunction. See 750 ILCS
45/13.5(a)(1) (West 2004). On the other hand, the court was
clearly concerned about the effect on Waldrop=s financial and
emotional health were she to be enjoined from removing Callie.
Whether an injunction would be proper is not sufficiently
evident as to permit this court to enter an order based on the
cold record before us.
We note as well that, even if it were clear that Fisher was
entitled to an injunction, the appellate court would have erred in
ordering that the circuit court make the injunction permanent.
Although the appellate court did not explain its reasoning, it
may be that the court focused on that portion of section 13.5
which states that the court Amay enjoin a party having physical
possession or custody of a child from temporarily or
permanently removing the child@ from Illinois. See 750 ILCS
45/13.5 (West 2004). However, it is clear that the phrase
Atemporarily or permanently@ modifies the verb Aremoving,@
rather than the verb Amay enjoin.@ In other words, the court has
the power to enjoin removal, whether the removal is intended
to be permanent or only temporary. But this is not the same
thing as saying that the court has the power to temporarily or
permanently enjoin the custodial parent from removing the
child. It is clear that section 13.5 does not contemplate a
permanent injunction, given that it only permits the circuit court
-14-
to enjoin removal Apending the adjudication of the issues of
custody and visitation.@ 4 Even if it were clear that Fisher was
entitled to an injunction, neither he nor any parent may be
granted an injunction of a permanent nature.
We believe that the only appropriate course of action is to
remand for the circuit court to rule on Fisher=s injunction,
focusing as we have stated on whether the factors listed in
section 13.5, as well as any other similar matters the circuit
finds relevant, warrant enjoining Waldrop from removing Callie
until a best interests hearing on Callie=s removal has been
held. Regardless of the outcome of this hearing, Waldrop must
file a petition for leave to remove Callie from Illinois if she still
intends to do so. 5
4
It appears that the appellate court may itself have had some doubt
regarding the propriety of a permanent injunction, in light of the court=s
explicit comment that Waldrop could file a petition for leave to remove on
remand. See 335 Ill. App. 3d at 1142. If the court truly meant what it said
when it ordered the circuit court to enter a permanent injunction, it is not
clear what good it would have done Waldrop to file such a petition.
5
It is true that in its initial rulings on parentage and custody the court
refused to bar Waldrop from removing Callie. However, we do not read the
court=s orders as granting Waldrop blanket authority to remove Callie from
Illinois at any time in the future for any reason regardless of the
-15-
CONCLUSION
The appellate court was correct to reverse the circuit court=s
judgment granting Waldrop leave to remove Callie from Illinois,
and was also correct that the Parentage Act requires the
custodial parent to seek leave of court for removal and to prove
that removal would be in the child=s best interests. However,
we do not agree with the appellate court that the circuit court=s
denial of injunction was against the manifest weight of the
evidence, and thus ought to be reversed outright. Rather,
because it appears that the circuit court conflated the issues of
injunction and removal, the proper course is to remand for the
circuit court to rule on the injunction request. Moreover, even if
the circuit court=s denial of injunction had been against the
manifest weight of the evidence, the appellate court would
have erred in ordering the circuit court to issue a permanent
injunction on remand, a remedy which the statute does not
contemplate.
Accordingly, the judgment of the appellate court is affirmed
in part and reversed in part, the judgment of the circuit court is
reversed, and the cause is remanded to the circuit court to rule
on Fisher=s motion for injunction in accordance with the
guidelines set out above.
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment reversed;
circumstances. Rather, the court was merely rejecting Fisher=s demand that
the court issue a blanket prospective ban on removal, which was entirely
properBa custodial parent=s interest are not automatically subordinate to
those of the noncustodial parent. In re Marriage of Collingbourne, 204 Ill.
2d at 528.
-16-
cause remanded.
JUSTICE GARMAN took no part in the consideration or
decision of this case.
CHIEF JUSTICE THOMAS, dissenting:
I do not agree with the majority=s construction of the
applicable statutes or with its conclusion that this case must be
remanded for another hearing on Fisher=s motion for an
injunction. In my view, section 13.5 has no application to this
case, and therefore the cause should not be remanded for a
hearing to determine whether Fisher has the right to an
injunction under that section.
This case has worked its way through the circuit court, the
appellate court, and the supreme court, without anyone
questioning Fisher=s right to file for an injunction under section
13.5. This is curious, as the first sentence of that section
provides that:
AIn any action brought under this Act for the initial
determination of custody or visitation of a child or for
modification of a prior custody or visitation order, the
court, upon application of any party, may enjoin a party
having physical possession or custody of a child from
temporarily or permanently removing the child from
Illinois pending the adjudication of the issues of custody
and visitation.@ (Emphases added.) 750 ILCS 45/13.5(a)
(West 2004).
Thus, before a party may move for an injunction under section
13.5, there must be (1) an action brought under the Parentage
Act, and (2) that action must be one for the initial determination
of custody or visitation, or for modification of a prior custody or
visitation order. Here, there was no pending action for
modification of custody or visitation when Fisher moved for an
injunction. Rather, Fisher initiated this proceeding by moving
for an injunction. There was briefly a removal action filed by
Waldrop, and this removal petition included a request that
Fisher=s visitation schedule be Aadjusted accordingly,@ but
Waldrop voluntarily dismissed this action after one week. Thus,
-17-
at the time Fisher moved for the injunction there was not, nor is
there now, a pending action for custody or visitation. Why
would we remand this cause for a hearing to determine
whether Fisher is entitled to an injunction preventing Callie=s
removal from Illinois pending the determination of custody or
visitation issues, when there are no pending custody or
visitation issues?
Although the error is not ultimately relevant on the facts of
this case, the majority gets itself on the wrong track by
improperly reading the word Aremoval@ into section 13.5. The
majority quotes from section 13.5 and even emphasizes the
language Apending the adjudication of the issues of custody
and visitation.@ See slip op. at 10. In the very next sentence,
however, the majority asserts that A[i]t is clear that the
injunctions permitted by section 13.5 are intended to be
temporary in nature, keeping the child in Illinois only until the
court can conduct a hearing on the merits of a removal
petition.@ Slip op. at 10. The majority never explains how it
made the leap from Aissues of custody and visitation@ to
Aremoval petition.@ Perhaps the majority is assuming that a
petition for removal is necessarily a petition to modify visitation.
This is not necessarily the case, however, and whether a
removal results in a modification of visitation depends on the
circumstances of the particular case. Moreover, as the majority
is well aware, the Parentage Act treats Aremoval@ as a separate
issue from custody and visitation. See, e.g., 750 ILCS
45/14(a)(1) (West 2004) (AIn determining custody, joint
custody, removal, or visitation, the court shall apply the
relevant standards of the Illinois Marriage and Dissolution of
Marriage Act, including Section 609@); 750 ILCS 45/16 (West
2004) (AThe court has continuing jurisdiction to modify an order
for support, custody, visitation, or removal included in a
judgment entered under this Act@). Thus, contrary to the
majority=s interpretation, section 13.5 is not automatically
triggered when the action the court is considering is a removal
petition filed by the custodial parent. Here, however, the
removal petition included a request that the court modify
visitation accordingly. Thus, if the majority is going to conclude
that section 13.5 is relevant to this case, it should do so solely
-18-
on the basis that Waldrop moved to modify the visitation
schedule, not because she filed a removal petition. It should
then conclude both that Waldrop=s withdrawal of that request
renders section 13.5 inapplicable and that a remand for a
hearing on Fisher=s request for an injunction is unnecessary.
Moreover, even if the majority were correct that the word
Aremoval@ should be judicially legislated into section 13.5, a
remand would still be unnecessary. According to the majority,
Athe injunctions permitted by section 13.5 are intended to be
temporary in nature, keeping the child in Illinois only until the
court can conduct a hearing on the merits of a removal
petition.@ Slip op. at 10. Yet the majority readily concedes that
there is no removal petition pending in the circuit court. Slip op.
at 2, 13, 14. The majority leaves it to the reader to ponder why
this cause is being remanded to the circuit court to determine if
it will enjoin removal pending the adjudication of the merits of a
removal petition when there is no removal petition.
In my view, the majority is unnecessarily creating tension
between the various sections of the Parentage Act dealing with
removal. I believe that the legislature intended section 13.5 to
be used before a judgment of parentage has been entered.
Once the court has entered a parentage judgment, section 609
of the Marriage Act is triggered and a noncustodial parent no
longer needs to rely on section 13.5. 750 ILCS 45/14(a)(1), 16
(West 2004); see also A. Albrecht, 2003 Spring Session
Roundup: Family Law, 91 Ill. B.J. 381 (2003) (AHouse Bill 1382
(Fritchey, D-Chicago; Garrett, D-Lake Forest) allows a party to
a Parentage Act case to obtain an injunction prohibiting the
permanent removal of the child from Illinois. There is no
requirement that parentage be established before the petition
for injunction is filed. Once there is an order of parentage, the
criteria of section 609 of the Illinois Marriage and Dissolution of
Marriage Act apply@). Section 609 requires a custodial parent to
obtain leave of court before temporarily or permanently
removing the child from the state. Thus, section 609 already
restrains the parent from removing the child from the state, and
an injunction would be wholly redundant. This interpretation is
supported by the plain language of section 13.5 and by its
chronological placement in the Parentage Act. The legislature
-19-
placed this section directly after section 13.1 (750 ILCS 5/13.1
(West 2004)), which deals with temporary support orders
pending a judicial determination of parentage, and before
section 14, which addresses parentage judgments. Moreover,
one of the factors the legislature directs the court to consider in
determining whether to grant a section 13.5 injunction is Athe
likelihood that parentage will be established.@ 750 ILCS
45/13.5(a)(2) (West 2004). This factor makes little sense if the
legislature intended this section to apply after a parentage
judgment has been entered. When section 13.5 is viewed in
this light, it makes sense that the legislature made section 13.5
applicable only in custody and visitation actions and not in
removal actions: once section 609 is triggered and a removal
petition is required, section 13.5 is irrelevant. Here, because
the court had already entered a parentage judgment, Waldrop
was required to demonstrate that removal was in Callie=s best
interests and to obtain leave of court before temporarily or
permanently removing her from Illinois.
Contrast this to the majority=s interpretation. The majority
believes that the legislature intended to establish a bifurcated
proceeding for postjudgment removal actions. Under this
procedure, although the custodial parent must obtain leave of
court before removing the child, the noncustodial parent may
also move for an injunction to prevent removal. If the
noncustodial parent does so, the court will then hold two
hearings, the first focusing on the parents= interests and the
second focusing on the best interests of the child. Apparently,
the purpose of this first hearing is for the court to determine if it
will allow the custodial parent to improperly leave the state in
defiance of the statute. At the second hearing, the court will
focus on the best interests of the child and determine if the
custodial parent will be allowed to remove the child lawfully.
The majority is able to reach this strange conclusion only by
rewriting section 609 of the Marriage Act. Section 609, which is
fully applicable in Parentage Act cases once a parentage
judgment has been entered, requires a party to obtain leave of
court before removing the child. The majority holds, however,
that a custodial parent is free to remove the child simply by
filing a removal petition, and, as long as the parent does so, he
-20-
or she will not be subject to contempt proceedings. Slip op. at
11 (Athe custodial parent [must] request leave of court before
removing children from the state regardless of whether an
injunction has been sought, and a custodial parent who
removes children from the state without having first at least
requested leave could potentially be subject to contempt
proceedings@ (emphases added)). The majority apparently
feels cornered into this interpretation, because a
straightforward application of section 609 shows why a
bifurcated hearing makes no sense. If the custodial parent may
not remove the child without obtaining leave of court, then the
injunction hearing is without any effect. If the injunction is
denied, the custodial parent may not leave; if the injunction is
granted, the custodial parent may not leave. See slip op. at 14
(A[r]egardless of the outcome of this hearing, Waldrop must file
a petition for leave to remove Callie from Illinois if she still
intends to do so@). Thus, the majority is forced to come up with
its Afree to leave once leave is requested@ theory in order to
make section 13.5 relevant in postjudgment removal actions.
If this is bad statutory construction, it is even worse policy.
Under the majority=s bifurcated hearing system in which a
parent is free to remove the child once leave is requested, and
the court will only consider the parents= interests in deciding
whether to enjoin this first removal, it is possible that the court
could reach two different conclusions. It could allow the initial
removal, based on an evaluation of the parents= interests, but
then deny removal once it considers the child=s best interests.
See slip op. at 12 (A[i]t is not impossible that a circuit court
could conclude that a noncustodial parent was not entitled to
an injunction but also ultimately determine that the custodial
parent=s proposed removal of the child would not be in the
child=s best interests@). The child will then have his or her life
disrupted twice, and the custodial parent could be forced to
give up his or her new life and move back to a previous home.
Because a court will be loathe to do this, the result of the
majority=s bifurcated hearing system inevitably will be a
prejudicing of the rights of noncustodial parents. If the child is
removed from the state pending the best-interests hearing, the
child will have begun a new life in a new home, and his or her
-21-
best interests likely will have changed. It will be impossible for
a court to turn a blind eye to the child=s changed environment.
See, e.g., Reddig v. Reddig, 12 Ill. App. 3d 1009, 1011 (1973)
(court remands for new best-interests hearing for children who
had been improperly removed to Texas in violation of a court
order; appellate court determines that trial court must take into
account the fact that children had been living in Texas for over
six months).
Although it is not always possible for a court to know what
is in a child=s best interests, I think we can say for certain what
is not: multiple removal hearings with shifting burdens of proof.
Callie has already been subjected to one removal hearing, and
under the majority=s erroneous interpretation of the Parentage
Act, she will now be subjected to two more, with different
burdens of proof. The majority brushes these concerns aside
with the assertion that a similar procedure is provided for in the
Marriage Act. Slip op. at 11. This is not correct. The Marriage
Act injunction provision is one sentence that states that a party
may request a preliminary injunction to enjoin a party Afrom
removing a child from the jurisdiction of the court.@ 750 ILCS
5/501(a)(2)(ii) (West 2004). This section reads nothing like
section 13.5 of the Parentage Act and does not list factors for
the court to consider in determining whether to issue such an
injunction. The majority fails to cite a single case supporting its
theory that there is a bifurcated system under the Marriage Act
in which there are two removal hearings, one focusing on the
parents and another focusing on the child. I fear that the result
of today=s decision will be that the bifurcated removal hearing
necessarily will be read into the Marriage Act, and that future
courts will see a tension between sections 501(a)(2)(ii) and 609
where none was evident before. Moreover, it is inevitable that
parents seeking to remove children under the Marriage Act will
rely on today=s opinion as authority for the proposition that they
are entitled to remove them simply by requesting leave to
remove.
Finally, even if the majority=s construction of the Parentage
Act is correct and section 13.5 is applicable to this case, it
would still not be necessary to remand for a new injunction
hearing. The majority fears ruling on the request for an
-22-
injunction on the basis of a Acold record.@ Slip op. at 13. Yet it
concedes that two out of the three statutory factors clearly
weigh in favor of Fisher. Moreover, section 13.5 allows the
court to consider any other factor. Surely significant factors
weighing in favor of Fisher are that Waldrop has no right to
remove Callie from the state and, indeed, is not even currently
seeking to do so, as she has withdrawn her petition. Thus,
even if the majority persists in its erroneous view that section
13.5 applies after a parentage judgment has been entered and
in the absence of pending custody and visitation issues, it
should conclude that Fisher is entitled to an injunction rather
than remanding this cause for another hearing.
In sum, there is simply no reason to remand this cause for
another hearing on Fisher=s request for an injunction. That
request is moot because (1) a parentage judgment has already
been entered, thus triggering the protections of section 609 of
the Marriage Act; and (2) there are no custody or visitation
issues currently pending before the circuit court. The majority=s
misreading of the applicable statutes has led it to adopt a
disruptive procedure that is no one=s best interests, least of all
the children involved in removal cases, whose best interests
are supposed to be paramount. I cannot join such an opinion,
and therefore must dissent.
JUSTICE KILBRIDE joins in this dissent.
-23-