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March 21, 1996


Chief Justice Bilandic delivered the opinion of the court: Justice Heiple took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

Cheri Mayer, formerly known as Cheri Smith, filed a petition in the circuit court of Peoria County seeking sole custody of the parties' two daughters and for permission to remove the children from Illinois to New Jersey. In response, Thomas Smith filed his own petition seeking sole custody of the children. The circuit court granted Cheri sole custody and denied her request for removal. The appellate court affirmed the circuit court's judgment. No. 3--94--0162 (unpublished order under Supreme Court Rule 23). We allowed Cheri's petition for leave to appeal (145 Ill. 2d R. 315) and now affirm.


The parties' marriage was dissolved in 1989. In 1990, the circuit court entered an order approving a joint parenting agreement which established joint custody of the parties' two daughters, Courtni, born in 1982, and Brittni, born in 1987. Physical custody of the children was shared, almost equally. During the first and third weeks of each month, Cheri had the children for five days in a row, and Thomas had them for two days. During the second and fourth weeks, Cheri had the children for about 2 1/2 days, and Thomas had them for about 4 1/2 days. The parties also shared alternating holidays and birthdays and were allowed an uninterrupted two weeks of vacation with the children each summer

On October 30, 1992, Cheri Mayer filed her petition to modify custody and for permission to remove the children from Peoria, Illinois, to the State of New Jersey. The petition asserted that there had been a substantial change in circumstances since the joint custody arrangement in that: (1) Cheri has remarried and has a stable, loving relationship with her new spouse, Michael Mayer; (2) Cheri has stopped working at her previous full-time employment and is available to spend almost all her time with the children; and (3) Thomas, individually, and with his new spouse, Laura Smith, has engaged in a comprehensive scheme in an attempt to deny Cheri a normal loving relationship with the children. Cheri also filed a petition requesting the court to order psychological evaluations of all the parties and the children.

On January 19, 1993, Thomas Smith filed his own petition for modification of custody. He too sought sole custody of Courtni and Brittni.

By agreement of the parties, the circuit court heard evidence on the custody and removal issues at the same time. Witness testimony took place over the course of several months in 1993.

Cheri testified that, on March 24, 1992, she married Michael Mayer, whom she met through work. Michael was already living in New Jersey at the time of the marriage. After the marriage, Michael stayed in New Jersey and Cheri stayed in Peoria with her children. When Cheri traveled out to New Jersey to see Michael, she stayed for five consecutive days while the children stayed with their father. Cheri quit work on June 5, 1992, in order to spend more time with her children and new husband. She no longer needed to work for financial reasons. Cheri believed that a move to New Jersey would benefit the children because she could spend more time with them and she could remove them from what she considered to be a pattern of negative influence against her. Cheri testified at length about a pattern of detrimental behavior and denigration by Thomas and Laura Smith toward her, which damaged the bond between her and her daughters. We need not detail this extensive testimony here, but simply note that much of Cheri's testimony in this respect was corroborated by other evidence. Cheri admitted that the relationship between herself and Courtni was strained as a result.

Cheri testified that she and her new husband had investigated the Newton-Sparta area of New Jersey as the place where they would likely live if the removal petition was granted. The children had already been accepted by a private Christian school in New Jersey, and it was comparable to the private Christian school that Courtni attended in Peoria. Cheri had located a Lutheran church in the Newton-Sparta area, which was similar to the church she and her daughters attended in Peoria. Christian family counselors for the children were available in New Jersey. Cheri also described the numerous cultural opportunities available to her daughters in New Jersey, such as Girl Scouts, historical sites, plays, and concerts. If removal should be allowed, Cheri stated, she would be willing to work with Thomas on a visitation schedule. She believed that flight arrangements between Peoria and New Jersey were easy to make.

Cheri's new husband, Michael Mayer, testified that he is a senior vice president at Beneficial Management Corporation, earning approximately $200,000 per year. He has lived in New Jersey for the past eight years. Michael frequently visited Cheri and her daughters in Peoria. He had located available permanent housing in New Jersey for himself, Cheri, and the children. Cheri had told Michael that, if she does not gain custody of the girls, she does not intend to move to New Jersey. He has never expected Cheri to leave her children. In fact, Michael testified that, when he and Cheri first married, Cheri's intention was to stay in Illinois with her children pursuant to the joint custody arrangement. It had not been practical for Courtni and Brittni to come from Peoria to New Jersey for weekend visits.

Thomas Smith testified that he is employed by S&K Chevrolet in Peoria and earns about $100,000 annually. He married his present wife Laura in 1991. He and Laura had their first child together in April 1993. Thomas stated that he and his wife enjoy a good relationship with his daughters. Prior to his divorce from Cheri, Thomas took care of Courtni and Brittni much of the time while Cheri worked. Thomas believed that, as a result, Courtni failed to develop a close bond with her mother during her early years.

Thomas further testified that he takes Courtni fishing. He swims with the children, plays basketball with them, and takes them golfing, to the theater, and to Peoria Civic Center events. He helps Courtni with her homework. He took a different position at work so that he could spend more time with the girls.

Thomas admitted discussing several adult issues with Courtni, including that he pays $1,055 per month to Cheri for child support. He told his daughters that he could not ...

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