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In Re Marriage of Burgham



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.


We are concerned here with a request by a custodial spouse, divorced in this State, to permanently remove from this State the children over whom she was granted custody.

Petitioner, Barbara J. Burgham, was divorced from respondent, Douglas E. Burgham, in the circuit court of Champaign County on June 4, 1976, and was granted custody of their three children. Pursuant to subsequent proceedings, an order was entered by that court on August 2, 1979, which, among other things, transferred the custody of the parties' oldest child, Pamela, to respondent but permitted petitioner to permanently remove the parties' sons, Karl Douglas, aged 11, and Dale Eric, aged 9, from the State to accompany her to California. A timely motion by respondent which, among other requests, asked reconsideration of the permission to remove the children was heard and on November 21, 1979, an order was entered refusing to reconsider the authorization to remove.

Respondent appeals the grant of the authority to remove, asserting that (1) the trial court misunderstood the law, and (2) any conclusion that removal was in the best interests of the children was contrary to the manifest weight of the evidence.

At the time of the divorce and up to April 2, 1979, when the instant petition was filed, petitioner had lived in Champaign with the children. At the time of the divorce, respondent had been living in the Commonwealth of Virginia for about a year, and by the time of the instant petition, had remarried and was living in the State of New York. By the time that petition was heard on July 23, 1979, petitioner had taken the boys and moved to Santa Clara, California, where she had rented a house and taken a position with an insurance agency. The house was in a quiet residential area about four blocks from the boys' school. Her testimony indicated that, from a financial standpoint, she would neither gain nor lose by the move. Her salary in her new job would be higher and some of her expenses would be less than in Champaign, but these advantages would be offset by the higher rent she would have to pay.

All evidence indicated that the boys were both well-adjusted and in excellent health. The younger boy was stated to be an excellent student, while the older one was an average one. A letter of a psychologist was admitted as a joint exhibit of the parties. It stated that both boys had positive ties to both parents.

Respondent's objections to the move rested upon (1) petitioner's relationship with a male friend which respondent deemed to be harmful to the boys, and (2) the lessened visitations that the boys could have with him because of the greater expenses that would result from the added traveling costs.

Petitioner admitted that her move was influenced by the move from Champaign to Santa Clara of her male friend. On cross-examination, she admitted that he had on occasion spent the night with her at her home in Champaign while the children were present and had done so in Santa Clara. She testified that he had another Santa Clara residence but kept clothing in her house and had an office in the house in exchange for which he paid a portion of her rent. When questioned in chambers by respondent's counsel, both boys indicated that they were not bothered by their mother and her male friend's sporadic living together. The testimony of the parties was in dispute as to whether they perceived the boys as being uncomfortable with the situation.

In a concise memorandum opinion, the trial court noted that respondent and his present wife had also lived together before their present marriage, although not in the presence of children. The court concluded that (1) petitioner's activities with her male friend did not make her an improper custodian, citing Burris v. Burris (1979), 70 Ill. App.3d 503, 388 N.E.2d 811, and Jarrett v. Jarrett (1978), 64 Ill. App.3d 932, 382 N.E.2d 12, and (2) "[c]courts will interfere" in a custodial spouse's removal of children from the State only where it "is so detrimental to the welfare of the children that legal intervention is necessary." (Emphasis added.)

At all times involved in petitioner's request for permission to remove the children, section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 609) stated in part:

"Leave to remove children. The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children." (Emphasis added.)

Prior to the enactment of the foregoing, section 13 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 14) provided that the court might give leave to a custodial spouse to remove custodial children from the State "whenever such approval is in the best interests of such child or children." (Emphasis added.)

Respondent strongly argues that the manifest weight of the evidence showed that removal of the boys to California would be detrimental to them. He also asserts that, in any event, at best, the petitioner only established that she desired to remove the boys to California and that this would be an insufficient showing even if there was no indication that the move would be detrimental to them. In support of the latter contention, he cites Quirin v. Quirin (1977), 50 Ill. App.3d 785, 789, 365 N.E.2d 226, 228, where the appellate court reversed a trial court order authorizing a custodial mother to remove the custodial children from Illinois to accompany her to Arkansas where her new husband wished to work.

"We are of the considered opinion that the mere desire of the parent having custody to move to another State, without more, is insufficient to establish that the move would be in the best interests of the children. (See Reddig v. Reddig.) Although we would be hesitant to hinder anyone from moving wherever his best opportunities for livelihood might be found, and taking his family with him (see Spencer v. ...

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