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In Re Marriage of Bednar

OPINION FILED JULY 24, 1986.

IN RE MARRIAGE OF MICHAEL F. BEDNAR, PLAINTIFF-APPELLEE, AND CAROL BEDNAR, DEFENDANT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Monica Reynolds, Judge, presiding.

JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:

Pursuant to this court's allowance of her petition for leave to seek permissive interlocutory appeal in accordance with Supreme Court Rule 308 (87 Ill.2d R. 308), Carol Bednar (Carol) appeals from the order of the Cook County circuit court which denied her motion to dismiss the petition of her former husband, Michael Bednar (Michael), to remove Bradford, the son of Carol and Michael, from the jurisdiction of the State of Illinois. Carol and Michael had previously agreed to the joint custody of Bradford, with Michael to have physical residence of the son and Carol to have substantial and specific rights of visitation. This agreement was embodied in a trial court judgment which dissolved the parties' marriage in 1984. Since Michael's petition for removal from Illinois was filed within a few months following the marriage dissolution, Carol filed a motion to dismiss the petition on the basis that a petition for removal where both parents are granted joint custody is, in effect, a petition for modification of custody under section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1983, ch. 40, par. 610). The trial court denied Carol's motion to dismiss the removal petition, and we granted permissive interlocutory appeal based upon the following pertinent findings and conclusions contained in the trial court's order of certification:

"The Court finds that Order of June 20, 1985, denying Defendant's Motion to Strike involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from that Order may materially advance the ultimate termination of this litigation; and that

The question of law involved in the June 20, 1985, order is whether Plaintiff's Petition for Removal which was filed less than three months after the date of the Court's joint custody judgment herein is governed by Section 603.1 and Section 610 of the Illinois Marriage and Dissolution of Marriage Act and whether Plaintiff's Petition for Removal is fatally deficient as a matter of law as a result of its failure to include affidavits showing that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health, as required by Section 610 which states that no motion to modify a custody judgment may be made earlier than two years after its date, unless the Court permits it to be made on the basis of such affidavits."

We conclude that Michael's petition for removal is governed by section 609 of the Dissolution Act (Ill. Rev. Stat. 1983, ch. 40, par. 609) regarding removal petitions and does not constitute a "modification of custody" under sections 603.1 and 610 of the Dissolution Act (Ill. Rev. Stat. 1983, ch. 40, pars. 603.1, 610). Consequently, we find that Michael's petition for removal was not deficient as a matter of law because of its failure to include affidavits alleging that there was reason to believe the child's present environment might endanger seriously his physical, mental, moral or emotional health. (See Ill. Rev. Stat. 1983, ch. 40, par. 610(a).) Accordingly, we remand the cause for further proceedings consistent with the views expressed herein.

BACKGROUND

Carol and Michael Bednar were married on January 8, 1977. One child, Bradford, was born to the marriage, on February 18, 1978. Their marriage was dissolved pursuant to judgment entered in the Cook County circuit court on June 12, 1984, retroactive to May 2, 1984. At that time, Carol was 27 years old, Michael was 34 years old, and Bradford was 6.

Pursuant to the judgment of dissolution incorporating the parties' agreement, Michael received residential custody of their son and Carol was granted specified rights of visitation. The trial court's judgment for dissolution of marriage and other relief of June 12, as ultimately corrected by the trial court in an order entered May 2, 1985, effective nunc pro tunc to June 12, 1984, provided for joint custody as follows:

"That both parties are fit and proper persons to have the joint care, custody, control, health, education and religious training of the minor child, and it is in the best interests of child that both parties have the joint care, custody, control, health, education and religious training of the minor child and, accordingly, the care, custody, control, health, education and religious training of the minor child of the parties shall be jointly vested in the parties.

MICHAEL F. BEDNAR shall have the right of physical (residential) custody of the minor child, and the minor child shall reside primarily with him, subject to the rights of visitation of CAROL S. BEDNAR, which such visitation is as follows:

a. Each Thursday, from 5:00 to 7:00 p.m.

b. The first and third weekend of each month from Friday at 6:00 p.m. to Monday at 8:00 a.m., Carol to return said child to said child's babysitter.

c. Alternating national and legal ...


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