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06/02/88 In Re Marriage of Robert A. Bush

June 2, 1988



BARBARA A. BUSH, Respondent-Appellee

525 N.E.2d 163, 170 Ill. App. 3d 523, 121 Ill. Dec. 357 1988.IL.864

Appeal from the Circuit Court of Jo Daviess County; the Hon. Tomas M. Magdich, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. NASH and WOODWARD, JJ., concur.


Petitioner, Robert A. Bush, appeals from orders entered on post-judgment petitions granting respondent, Barbara A. Coulson, F/K/A Barbara A. Bush, sole custody of their minor children and allowing Barbara to remove their minor children to another jurisdiction. Robert contends that the court's decision was against the manifest weight of the evidence. We reverse.

Robert and Barbara were married on February 28, 1981. At that time it was the second marriage for each. Robert had an adopted daughter, Stacey M. Bush, from his previous marriage, and Barbara had one child, Laura J. Bush, from her previous marriage. Robert subsequently adopted Laura, and the parties gave birth to a third child, Adam R. Bush. On December 27, 1984, Robert filed his petition for dissolution of marriage, and judgment was entered on that petition on May 8, 1986. Incorporated within the judgment for dissolution was the parties' agreement that Barbara would have sole custody, care, and control of their minor children, Laura, then 14, and Adam, then four, conditioned upon her remaining within the Elizabeth, Illinois, school district for a period of not less than one year. That agreement further provided that in the event Barbara should elect to move out of the Elizabeth school district, the issue of custody of the minor children would be allowed to come before the circuit court for a full custody hearing to determine the best interests of the children. Stacey was 19 and emancipated at the time of the dissolution and was not subject to the custody provision.

On December 2, 1986, Barbara initiated the instant action by filing her post-judgment petition to remove Laura and Adam from Illinois to California. Robert filed a motion to strike and dismiss Barbara's petition to remove and subsequently filed his counterpetition seeking custody of the parties' minor children. The trial court held a hearing on both petitions on March 27, 1987.

The following facts were established at the March 27, 1987, hearing. Robert is an attorney licensed to practice law in Illinois. At the time of their marriage, Barbara was a computer programmer. The parties lived and worked in the Chicago metropolitan area. Sometime in the summer of 1984, the parties moved from Mount Prospect, Illinois, to rural Jo Daviess County. Robert owned property in Elizabeth, Illinois, and the parties frequently travelled to that location. According to Robert, they moved to Elizabeth because they liked the area and "country ethic" and wanted to raise their children there. Although Laura and Adam accompanied their parents, Stacey remained in Mount Prospect to finish school and work.

For the most part, Robert severed his professional practice from the Chicago area; however, he did maintain a relationship with a corporate client demanding a great deal of his time. In December 1984, Robert underwent triple-bypass heart surgery. He was released from the hospital on December 21, 1984, and filed his petition for dissolution of marriage five days later. Robert left the marital home at Barbara's request the following month. Despite leaving the marital home, Robert maintained his relationship with Laura and Adam.

Pursuant to the subsequently entered judgment of dissolution, Robert was given visitation rights on alternate weekends from Friday night to Monday morning, plus one night per week. In addition, he was given visitation on alternate holidays and two weeks of extended visitation during the summer. For the most part, Robert exercised his weekend visitations, but would generally bring the children home on Sunday nights rather than Monday mornings. He exercised his visitation rights in the middle of the week by occasionally taking the children out to dinner. He also called them on the telephone every other night. Robert stated that if the children were removed to California, he could not afford the costs of transportation to see them and his visitation with the children would be substantially impaired.

With respect to the type of relationship Robert enjoyed with his children, testimony indicates that Robert actively performed many of the responsibilities associated with parenthood, such as transporting the children to appointments and other functions, bathing and reading to Adam, and taking the children on vacations. Robert and Barbara shared disciplinary responsibility and acted together on such things as placing Adam in preschool, making him wear undershirts, and weaning him of his pacifier; however, the record is more supportive of Robert's assertion that he had the primary role in those activities.

Barbara testified that she had remarried to Thomas Coulson and wished to move to Foster City, California, to be with her new husband as well as to take advantage of the employment opportunities there. Barbara stated that the Foster City community is comparable to Mount Prospect, Illinois. Barbara indicated that she would be willing to pay half the costs of transporting the children to and from Illinois. However, ...

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