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03/27/97 MARRIAGE JOSEPH M. WALKER

March 27, 1997

IN RE MARRIAGE OF JOSEPH M. WALKER, PETITIONER-APPELLANT, AND JEANNE M. WALKER, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Cook County. No. 90 D 581. Honorable Richard Kelly, Judge Presiding.

Released for Publication May 12, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Wolfson, P.j., and McNAMARA, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Petitioner, Joseph M. Walker, appeals from the order of the circuit court of Cook County granting the motion of respondent, Jeanne M. Walker, for Illinois to concede jurisdiction over the child-custody proceeding to Minnesota. We affirm.

The parties were married on September 29, 1979, and their child, Joseph, was born on October 23, 1986. On January 16, 1990, petitioner filed a petition for dissolution of his marriage. On August 22, 1991, a judgment of dissolution of marriage was entered, incorporating a marital settlement agreement. The parties were awarded joint legal and physical custody of the child, who would reside 50% of the time with each parent. Beginning in September 1992, the child was to reside with petitioner each summer. The child was also to reside with petitioner during Easter and alternating Christmas vacations. Respondent was given the right to move with the child to Minnesota.

Paragraph 2.11 of the settlement agreement stated in part:

"Parties further agree that upon the minor child attaining the age of twelve (12) he shall have a right to express a preference in determining which parent he would desire to reside with ***. In the event the parties are unable to reach an accord, nothing in this paragraph shall prohibit a party from filing a Petition for Modification of Residence or Visitation, all in accordance with Chap. 40, Ill. Rev. Stat. " (Emphasis added.)

Paragraph 2.17 stated:

"In the event the parties are unable to agree to the specifics necessary to carry out the intentions of Article II [captioned 'Child Custody and Visitations'] of this Agreement, any dispute shall be submitted to a court of competent jurisdiction upon proper notice, petition and hearing for determination." (Emphasis added.)

Paragraph 14.5(G) stated:

"This Agreement shall be construed under the general laws of the State of Illinois, irrespective of the later domicile or residence of the HUSBAND or the WIFE." (Emphasis added.)

On December 29, 1994, petitioner filed a petition seeking to become the primary residential custodial parent. Petitioner alleged that there had been substantial changes of circumstances that caused the child's primary living environment to jeopardize his well being. Petitioner alleged that the child had behavioral problems and challenged the respondent's parenting.

Petitioner also filed a motion for a Supreme Court Rule 215(a) mental examination of the child by Dr. Robert E. Bussell, a psychiatrist in Illinois. 134 Ill. 2d R. 215(a). Petitioner argued that he believed that the child was currently under psychotherapeutic care and that a psychiatric evaluation would determine the fitness of both parents and the mental and emotional state of the child. On May 10, 1995, the trial ...


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