Appeal from the Circuit Court of Kane County. No. 90-F-1227. Honorable Judith M. Brawka, Judge, Presiding.
The Honorable Justice Inglis delivered the opinion of the court: Colwell and Rathje, JJ., concur.
The opinion of the court was delivered by: Inglis
JUSTICE INGLIS delivered the opinion of the court:
Respondent, Larry Robert Edward Jones, appeals the order of the circuit court of Kane County granting the petition for leave to remove a minor child from the State of Illinois filed by petitioner, Julie Forsell Taylor. Petitioner cross-appeals the order of the circuit court of Kane County declaring that section 609 of the Marriage and Dissolution of Marriage Act (750 ILCS 5/609 (West 1994)) (Marriage Act) applies to cases arising out of the Parentage Act (750 ILCS 45/1 et seq. (West 1994)) where the parties were never married. We affirm in part and reverse in part.
On August 19, 1990, R. M. F. (minor child) was born in Aurora, Illinois. The father and mother of this child are respondent and petitioner, respectively. Petitioner and respondent were never married, and they only lived together for a short period of time while petitioner was pregnant. They have not lived together since that time, and respondent was not present when the minor child was born.
On November 9, 1990, petitioner filed a petition to determine the existence of a father/child relationship pursuant to the provisions of the Parentage Act (750 ILCS 45/1 et seq. (West 1994)). Said petition requested child support and contribution to the expenses of pregnancy, delivery, and other medical costs. The trial court declared respondent to be the father of the minor child and ordered that respondent pay child support in the amount of $50 per week. The trial court further ordered respondent to procure medical insurance andpay petitioner $325 for costs associated with petitioner's pregnancy and delivery.
Following the entry of the original order, respondent was often in arrears on his child support obligations. On June 4, 1992, petitioner filed a rule to show cause why respondent should not be held in contempt for failure to pay child support. Respondent subsequently filed a petition for visitation. It appears from the record that respondent then became current on his child support obligations. Since then, he has consistently paid his support obligations. The trial court granted respondent reasonable visitation with the minor child which respondent has regularly exercised.
On April 23, 1994, petitioner married David Taylor (husband) who is a carpenter by trade. At his most recent job, he earned $12 an hour as a nonunion carpenter. Petitioner is a trained surgical technician and was most recently employed by Dreyer Medical Center for $10 per hour. Petitioner and her husband resided together in a two-bedroom home in Genoa, Illinois. They sold the Genoa home on August 13, 1994, because it had become too small for their needs. They have not yet purchased another home in Illinois.
Petitioner and her husband traveled to Phoenix, Arizona, on August 19, 1994, to investigate the possibility of relocating there. They were in Arizona until August 29, 1994. While there, they found a home they liked in Fountain Hills, Arizona, and entered into a contract to purchase the home for $101,550. They enrolled the minor child in a preschool in Fountain Hills. Both petitioner and her husband secured employment while in Arizona. Petitioner was offered a position which paid $14 per hour as a surgical technician. Petitioner's offer was rescinded, however, due to her inability to leave Illinois until the removal issue was resolved. Her husband was offered a position which paid $14 per hour with the possibility of a rapid increase to $18 per hour.
Upon petitioner's return to Illinois, she contacted respondent to discuss her impending move. Respondent objected to the move. Subsequently, petitioner became aware that she might be required to seek permission from the court before removing the minor child from the State of Illinois. Petitioner filed a petition for leave to remove the minor child from the State pursuant to section 609 of the Marriage Act. (750 ILCS 5/609 (West 1994).) Petitioner also filed a motion for a declaratory judgment that she was not required to seek court approval pursuant to section 609 of the Marriage Act, because the natural father and natural mother had never been married to each other.
The trial court granted the petition to remove the minor childfrom the State of Illinois. The court made the following specific findings: (1) petitioner and her husband would both be able to find higher paying jobs in Arizona; (2) petitioner's plan to stay home with the child for an initial period of time would enhance the child's quality of life; (3) the living conditions in Arizona are comparable to those in Genoa; (4) respondent's motivation in resisting the petition is not improper; (5) petitioner's motivation in seeking the removal was not to frustrate respondent's visitation rights; and (6) the visitation with respondent can be enhanced by allowing longer blocks of visitation with the child. The court further declared that section 609 of the Marriage Act applied to those situations in which the parties had never been married and the custodial party was seeking to remove the child from the State of Illinois. This timely appeal and cross-appeal followed.
On appeal, respondent argues that the trial court's granting of the petition to remove the minor child from Illinois was against the manifest weight of the evidence. Respondent further argues that the trial court improperly applied the factors set forth in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 325-327, 116 Ill. Dec. 220, 518 N.E.2d 1041.
Section 609(a) of the Act provides that "the court may grant leave *** to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children." (750 ILCS 5/609(a) (West 1994).) In a removal case, the paramount question is whether removal is in the best interests of the child. ( Eckert, 119 Ill. 2d at 325.) When making a determination as to the best interests of the child, there is no bright line test; rather, the decision must be made on a case-by-case basis, depending, to a great extent, on the circumstances of each case. ( Eckert, 119 Ill. 2d at 326.) A trial court's determination as to the best interests of the child will not be reversed on appeal unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Eckert, 119 Ill. 2d at 328.
In making a determination as to the best interests of the child, the trial court should hear any and all relevant evidence. ( Eckert, 119 Ill. 2d at 326.) Factors which should be considered by the trial court include the following: (1) whether the proposed move would enhance the general quality of life for both the custodial parent and the child; (2) the motives of the custodial parent in pursuing the removal; (3) the motives of the noncustodial parent in resisting the removal; (4) the visitation rights of the noncustodial ...