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09/23/87 In Re Marriage of Jane E. Jones

September 23, 1987



JERRY L. JONES, Defendant-Appellant

513 N.E.2d 1181, 160 Ill. App. 3d 593, 112 Ill. Dec. 572 1987.IL.1415

Appeal from the Circuit Court of Will County; the Hon. Raymond A. Bolden, Judge, presiding.


PRESIDING JUSTICE BARRY delivered the opinion of the court. STOUDER and SCOTT, JJ., concur.


This appeal is from an order of the circuit court of Will County denying a petition of Jerry Jones (father) in which he sought to obtain permanent custody of his twin sons and to remove them from Will County, Illinois, to Florida, thereby modifying the joint custody agreement incorporated in the judgment of marriage dissolution. The judgment specifically provided:

"4. Joint physical custody shall be conditioned on each party residing in the Joliet area; if either party moves out of the Joliet area, either party may apply to the court for a determination of which party shall have custody of the minor children."

Jane Jones (mother) obtained the divorce from the father in 1983. They are the parents of twin sons born in 1971. After the divorce, the mother and father lived within six or seven blocks of one another. "Joint custody" has been carried out by actual sharing of physical custody of the boys; i.e., they spend three or four days with their mother, then three or four with their father. Both parents attend sports events and school activities. The boys are close to both maternal and paternal grandparents, who also live in the Joliet area. Both twins are above-average students and have been in a college preparatory course at Catholic High School in Joliet. Both boys are very good athletes and have been all-star baseball players with local teams.

In early 1984 the father began to date Catherine Kinley, also divorced, whose youngest son was the best friend of the Jones twins. According to the father's testimony, the firm where he worked as an accountant for 15 years has undergone a change in ownership; he has been passed over for promotion several times recently; and his future prospects for continued employment with that firm are uncertain. Also, as he and Catherine began to consider marrying, they found her employment as a nurse from 10 p.m to 8 a.m. interferes with their opportunities to spend time together. As a result of these factors, the father and Catherine went to Florida in February, May, July and August of 1986 to look over the possibilities of moving there with their children.

The father filed the petition to modify the joint custody arrangement in August of 1986, and in September of 1986, he married Catherine Kinley. At the time of the hearing on his petition, in October of 1986, he and Catherine had bought a home in Coral Springs, Florida; Catherine had obtained employment there working a daytime schedule; and Catherine had moved there with her three children, ages 18, 15, and 14. The father was still residing in Joliet, but he had given notice of termination to his employer and was planning to go to Florida shortly to seek work there.

The mother owns a home in Joliet jointly with a woman friend who resides with her. When the father asked the mother to agree to a modification of the custody order to allow the boys to live in Florida with him during the school year and to visit her during school vacations and for three months in the summer, she refused. The boys were interviewed by the court, and both expressed a desire to live with their father and his new family in Florida.

The trial court stated that a stable environment is equally as important as the desires of the boys in determining their best interest and noted that many of the advantages which the father had testified would be available in Florida were merely expectations and not certainties, as compared to the situation the boys would be leaving. The court said: "The Court sees young men, a family, friends; all the sports activities they could want; a fine school; and a stable environment as opposed to a new world which is totally untested."

On appeal, the father contends that the trial court erred in requiring clear and convincing evidence of a change in the circumstances of the children or the custodians which would require a modification of custody to serve the best interest of the children. He argues that the joint custody agreement was conditioned upon both custodians remaining in the Joliet area and the provisions for court determination in the event either parent moved out of the area should be construed as waiving the statutory burden of ...

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