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06/24/94 MARRIAGE ELIZABETH ANN YOUNG v. RORY

June 24, 1994

IN RE THE MARRIAGE OF: ELIZABETH ANN YOUNG, PETITIONER-APPELLANT,
v.
RORY EUGENE YOUNG, RESPONDENT-APPELLEE.



Appeal from the Circuit Court for the 14th Judicial Circuit Rock Island County, Illinois. No. 90 MR 91. Honorable Clarence A. Darrow, Judge, Presiding

Present - Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice.

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

Elizabeth Young, the petitioner, and Rory Young, the respondent, were divorced in Texas in 1988. The judgment of dissolution provided that they would be "joint managing conservators" of their minor son, Robert. Elizabeth was granted primary physical custody. During the pendency of the divorce, Elizabeth and Robert moved to Louisiana. Rory moved to Illinois after the divorce became final. One year later, Elizabeth moved to Illinois with Robert. In June 1993, Elizabeth filed a petition in the Rock Island County circuit court seeking permission to remove Robert to Louisiana. The trial court denied Elizabeth's petition. We find that the trial court's decision was clearly against the manifest weight of the evidence, and a manifest inJustice to Elizabeth has occurred. Therefore, we reverse.

After carefully reviewing the record and the testimony given in this matter, we find that the most crucial factor under the circumstances presented is the financial stability of the custodial parent. The evidence reveals that the home, family, school and child care arrangements proposed for Robert in Louisiana are comparable, if not better, than the home, family, school and child care arrangements currently in force in Illinois. However, Elizabeth's economic circumstances would be greatly enhanced by the move.

With regard to her financial situation, Elizabeth testified that she had been working as a nurse's assistant for a little over one year, earning $6.50/hour. This was a part-time job with no benefits. She was receiving public aid in the form of $175/month in food stamps and a medical card.

Elizabeth had recently earned a two-year degree in nursing. Although she had applied for positions at several area hospitals, she had received only one interview--for a part-time position at a lower rate of pay than she was currently receiving. She continued to watch the job postings and inquire regarding available positions. Elizabeth testified that she considered taking a position in several other cities but discovered that those hospitals were either not hiring or hiring for positions for which she did not believe she was adequately skilled. She was not aware of any available positions with private physiciansin the Moline area. Elizabeth's future plans included continuing her education in nursing; she hoped to teach nursing eventually.

Elizabeth stated that she had been offered a position with Willis Knighton Medical Center in Shreveport, Louisiana. She would be working three 12-hour shifts each week at a pay rate of $19.11/hour for weekdays and $21.11/hour for weekends. The benefits would include health and dental insurance, a retirement plan and a tuition-reimbursement plan.

The trial court found that Robert was well adjusted to his life in Illinois and that Robert and his father, Rory, have a close relationship. Further, it noted that the job market for nurses in the Moline area was tight but found that Elizabeth had not made a great enough effort to find employment. Finally, the court concluded by saying:

"I am going to deny the petition for removal based on the best interests of the child. * * * I don't believe at this time when the child is doing well that we should move him. * * * I don't want to disturb the child's progress * * * ."

Initially, Elizabeth argues that because the terms of the Texas judgment of dissolution grant her the power to establish Robert's residence, and those terms have not been modified, the Illinois courts are bound by the terms and must ratify her decision to move Robert to Louisiana.

Section 14.021 of the Texas Family Code requires that each custody agreement designate one parent to have the "sole legal right to determine the residence of the child." (Tex. Fam. Code Ann. sec. 14.021(c)(1).) Under the Uniform Child Custody Jurisdiction Act, Illinois must recognize and enforce the judgment of another state exercising jurisdiction pursuant to the Act. 750 ILCS 35/14 (West 1992).

Although we were unable to locate any Texas cases which analyze Elizabeth's argument that the Texas dissolution terms give her the power to establish Robert's residence anywhere she chooses, we find that we need not reach this issue because even when applying Illinois law, the trial court was in error in denying her petition.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act provides that a court may allow a child to be removed from the State of Illinois when such removal is in the best interest of the child. (750 ILCS 5/609(a) (West 1992).) The burden of proof rests on the party requesting removal. (720 ILCS 5/609(a) (West 1992).) In In Re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, 116 Ill. Dec. 220, the Illinois Supreme Court set out several factors which should be considered in determining whether removal is in the best interest of the child. These factors include: (1) the likelihood for enhancing thegeneral quality of life for both the custodial parent and the child; (2) the motives of the parents in seeking and opposing the removal; (3) the visitation rights of the non-custodial parent; and (4) the potential harm to the child. ( Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, 116 Ill. Dec. 220.) The trial court's ...


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