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April 6, 1994


Appeal from the Circuit Court of Kane County. No. 84-D-1563. Honorable Richard E. DeMoss, Judge, Presiding.

Inglis, Geiger, Bowman

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

A judgment of dissolution of marriage was entered on October 10, 1984, for petitioner, Susan B. Riess, n/k/a Susan Greenway (hereinafter the mother), and respondent, Gregory W. Riess (hereinafter the father). The couple had entered into a settlement agreement which was incorporated in the judgment of dissolution. The agreement provided that the mother would retain custody of the couple's infant daughter. After reaching school age, the child attended public school through third grade. At that point, the mother took the child out of public school and for one school year taught the child herself at home. The father filed a petition for a change of custody, arguing that the environment of the child endangered her emotional health and well-being. The trial court issued a written order, changing custody on the basis that a substantial change in the circumstances had occurred and it was against the best interests of the child to maintain custody with the mother. The mother appeals, contending that (1) the trial court abused its discretion in modifying custody because the father failed to prove by clear and convincing evidence that a change of custody was necessary; and (2) the trial court committed reversible error by improperly shifting the burden of proof to the mother. We reverse and remand.

The parties were married on October 17, 1981. The couple had one daughter, who was born on June 22, 1982. The mother filed for dissolution of marriage in 1984. The parties entered into a settlement agreement which provided that the mother would retain custody of the child, and this agreement was incorporated into a final judgment of dissolution which was entered on October 10, 1984. The mother filed a petition to modify the dissolution decree, which was granted, allowing her to move with the child to Arizona. The mother and child moved to Arizona.

Subsequently, the father filed a petition requesting that the order allowing the mother to leave Illinois be rescinded or, in the alternative, that he be granted custody of the daughter. The trial court vacated the previous order which had granted the mother leave to remove the child from the State of Illinois. The trial court issued a rule to show cause regarding removal of the child from the State of Illinois. The trial court then held the mother in contempt of court for failure to return the minor child to the State of Illinois. The father filed a petition for a change of custody, and the mother responded by sending the Judge a letter stating that she could not afford to travel to Illinois to defend herself. The matter was dropped, and neither party further pursued the issue that the mother and child were living in Arizona in violation of the order rescinding leave to depart from Illinois.

From December 1984 through December 1992, the mother and child resided in Tucson, Arizona, and the child had periodic visitation with her father in Illinois. On July 30, 1992, the father filed a petition for change of custody. In his petition the father alleged that the mother had removed the child from public school, that the mother was not properly trained to provide home schooling for the child, and that such education was not in the best interest of the child.

In his case in chief, the father presented testimony of several witnesses. His sister testified that the father and daughter had a "special relationship." His second wife testified that she and the daughter got along well and that she would be happy if the daughter joined their home should the father be awarded custody of the child.

The mother testified as an adverse witness. She testified that she lived in Tucson, Arizona, and had been remarried for 5 1/2 years. She was questioned extensively regarding the previous rulings of the trial court which dealt with taking the child out of the jurisdiction. She testified that she did not receive a copy of the order vacating the prior order which granted her leave to take the child to Arizona. She stated that the father did communicate the content of the latter order to her but she was not sure whether he was lying to her.

The mother testified that she was trained as a cosmetologist and that she had no formal education beyond high school. In order to prepare to home educate, she studied on her own and attended some informal training sessions in subjects such as math, English, social studies, and all the subjects she would be required to teach her daughter. This training went on for two years prior to her removing her daughter from public school. The mother received a computer card from the State of Arizona reporting her teaching certification test scores, which card was introduced into evidence. The mother testified that the card was her certificate that she would need if she were ever challenged to show that she was qualified to home instruct her child. The Arizona laws regulating home schooling require annual testing of the child. The mother testified that she had the child's test scores with her, although the father's counsel did not ask her to reveal what those scores were, nor did he move to admit them as evidence.

The mother testified that the child had remained in public school through the third grade. She testified that the child's teacher told her that the child would have to repeat third grade if she did not attend summer school. The child could not attend the summer school session because she was to visit her father in Illinois for a month that summer. In the fall of 1991, the mother began home schooling the daughter at the third grade level.

The mother testified that she did not discuss the home schooling issue with the girl's father before the program began. The mother testified that the father did not object to the mother about the change in schooling, but he did tell his daughter several times on the telephone that he was not happy about it. When asked by the father's counsel about socialization, the mother stated that in addition to home schooling the daughter participated in Sunday school, the AWANA club (a church activity group), and field trips with other home schoolers, and attended church with her family.

The father testified that he lived in Aurora, Illinois, with his second wife, who was pregnant at the time of the hearing. He testified as to his current and previous employment. He testified that he had regular visitation with his daughter for approximately three to four weeks every summer and that he and the mother alternated visitation on the girl's birthday.

The father testified that he originally agreed to the mother moving with the daughter to Arizona, but later moved to vacate the order granting her permission because of what he claimed were "untruths" from the mother. He told the mother of the order which vacated the order giving her permission to remove the child from Illinois. He could not recall telling her that she had been held in contempt. He said that he requested that the mother move back with the girl, or give him custody of the child, both of which she refused.

The father also testified that prior to June 1991 he did not know that his daughter was having problems in school. When his daughter visited him in the summer of 1991, he did not enroll her in summer school, although it was available. He testified that he told the mother he did not want her to home school the daughter and that he preferred to have the girl in either a public or private school. He testified that public schooling was his preference at the time of trial. However, he testified that if the court were to determine that the home schooling should continue, he would be willing to become qualified to conduct part of the home study program himself so that he could further extend his time with his daughter in Illinois. He testified that if he obtained custody of the daughter he would enroll her in a public school.

He said that he had waited to file his petition for custody because when the girl was younger, he was a single male and he did not think it was possible for him to take care of her. He testified that he and his daughter had spoken about his taking custody of her over the years. He had told her that when he remarried and there was someone else to help, he would want to take custody of her.

He admitted on cross-examination that he had had regular visitation with the daughter in the years 1987 to 1992 and that after each of those visitations he or a member of his family had put the daughter on a plane to send her back to Arizona, against the court order. At the close of the father's case, the mother moved for a directed finding, which was denied.

On direct examination, the mother explained the circumstances surrounding the alleged misrepresentations to her former husband regarding work in Arizona. She stated that before she left Illinois, she had been told that she would have a job with a company in Arizona. When she arrived in Arizona, she was informed that she would not be able to work with that company. However, she obtained a full-time job within two months after getting to Arizona and at that point worked full-time.

With regard to home schooling, the mother testified that she took her daughter out of public school because the child was falling behind in her classes. She learned of her daughter's poor performance through her bad grades, parent-teacher conferences, and the mother's personal observation in class as a teacher's aide. She also stated that the girl received little homework, and that which she did have would be done either incompletely or incorrectly. The mother volunteered as an assistant for her daughter's class one day a ...

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