Appeal from Circuit Court of McLean County No. 95D473 Honorable James E. Souk, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cook
The marriage of petitioner, James F. Shaddle, and respondent, Kristine M. Shaddle, n/k/a Kristine M. Schiff, was dissolved in February 1996. The trial court awarded the parties joint legal custody of their daughter, Devon (born in April 1990), with primary physical custody to Kristine. In June 1997, Kristine filed a petition for leave to remove Devon from the State of Illinois, alleging that she would soon marry Sidney Schiff and move to Florida. Later that month, Kristine and Sidney were married. In December 1997, the trial court denied Kristine's motion and she continued to live in Illinois while Sidney resided in Florida. In May 1998, a son, Michael, was born to Kristine and Sidney. In December 1998, Kristine filed a second removal petition, and in the early summer of 1999, while that motion was pending, Kristine moved to Florida, leaving Devon in James' care. In August 1999, following a hearing, the court denied Kristine's second removal petition. Kristine appeals. We reverse.
The court found that "the mother is an excellent parent." The court found that Devon was neutral on the move, "as long as she could continue to have substantial contact *** with both parents and the contact with her little brother." The court was critical of the fact that after the initial motion was filed, "[t]he mother, Ms. Schiff, however did not wait for that matter to be resolved but rather made the choice to go ahead and marry Mr. Schiff on June the 20th, 1997. And events have gone from that point." The court recognized the argument that "the best thing for this child is to be in the full-time care of mom who is a stay-at-home mom and who has always been with the child." However, there was more to this case. "The court is really being told, if this is not done my way, then the court will be responsible for not acting in the best interest of the child by not keeping the full-time mom situation. When, in fact, that would have occurred by the unilateral decision of the mother." The court saw "a somewhat disturbing pattern there of filing a removal petition and without you waiting for court determinations and then taking action, personal choices of her own which, of course, she has a perfect right to make, that then presumably put the court in a position where somehow its hands are tied." "Ms. Schiff knew before she got married that she was treading into dangerous, difficult waters that might create a problem." "That whole process *** does not indicate a decision I believe that placed Devon first."
The court determined "that while there may have been some efforts to seek out jobs in Illinois, that the effort was reasonably superficial." The court noted, however, that it did not "casually suggest that people take $50,000 pay cuts."
The court recognized that Devon had a good relationship with her father. "The move to Florida in my view would substantially alter the relationship between Devon and her father." "The relationship that this man has with his daughter is--and the involvement in her life[,] especially considering the work schedule that he has and travel[--]is exceptional." The court also noted that Devon had a very close relationship with her grandmother and her aunt.
The court was troubled by allegations made against Sidney Schiff in a prior divorce, while recognizing "we are not here today to determine the truth of what happened in Mr. Schiff's prior household or his prior divorce." The court was troubled that Schiff agreed to an order "that there be no contact with his child until progress is made or whatever." The court did note the "evidence presented by Devon that she likes Sid, and he is a good guy, and never been any indication from her of any problems in the home in any way, shape[,] or form." Still, the allegation "leaves uncertainty in which there is almost no way to alleviate perhaps until at least the court in New Jersey has removed that restriction." In contrast, "in terms of the care received from her father and his side of the family, there are no unknowns, there are no risks. There are no uncertainties." Nevertheless, "I really haven't any conclusions about what happened in New Jersey, and I have some recognition that it could all be one of those types of situations where one parent does eliminate the other."
The court concluded that "the choices that Mrs. Schiff has made has, in fact, led to hoisting herself upon her own petard and putting herself in a situation where the best interests of this child are not being served, and court believes that this second petition to remove should also be denied." The court also found that "the relationship of the father with this daughter is of such remarkable depth, and I feel that's an overriding factor in this case."
The trial court noted that the first removal petition was denied in December 1997, and "the court here has to determine whether there has been any substantial change since that time." If the court considered, in isolation, only the events occurring after the denial of the first petition, the court erred. At the second hearing, the court should have considered all facts bearing on the removal issue, whether or not those facts were in existence and were considered when the first petition was denied. The question before the trial court was not whether the evidence presented at the first hearing was insufficient to justify removal, and whether the evidence at the second hearing was insufficient to justify removal. The question before the trial court was whether all the evidence, considered in toto, was sufficient to justify removal. The party opposing removal should not gain an advantage from the fact that the evidence is taken at two hearings instead of one.
Where continuing relief is involved, such as in cases involving child support or custody, a modification may be appropriate where there is a later material change of conditions. A modification claim "may arise upon the later facts (to be considered sometimes in combination with the old), and that claim will be held not barred by the previous judgment." Restatement (Second) of Judgments §13, Comment c, at 133 (1982). "Where important human values *** are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought." Restatement (Second) of Judgments §24, Comment f, at 203 (1982). A determination by the court that the plaintiff has no enforceable claim because the action is premature is not a determination that he may not have an enforceable claim thereafter, and it does not normally preclude him from maintaining an action when the claim has become enforceable. Restatement (Second) of Judgments §20, Comment k, at 175 (1982).
A more limited rule is provided by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610(b) (West 1998)). Section 610(b) prevents a court from modifying a prior custody judgment except "upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment." 750 ILCS 5/610(b) (West 1998). Section 610(b) represents a compromise between the stability of custody judgments and the welfare of the child, which may be harmed if the court refuses to consider facts available earlier.
An order denying a petition for leave to remove is not a "custody judgment" as that phrase is used in section 610(b). An order denying a petition for leave to remove is not similar to an award of custody, where stability is all important. See In re Marriage of Wycoff, 266 Ill. App. 3d 408, 409-10, 639 N.E.2d 897, 900 (1994); In re Custody of Harne, 77 Ill. 2d 414, 420, 396 N.E.2d 499, 501-02 (1979) ("[I]nsuring the decree's finality is more important than determining which parent should be the custodian"). Parties are encouraged to file petitions for leave to remove as soon as possible, even before all the facts have been developed. The trial court should have considered all relevant evidence in deciding the second petition to remove, including evidence presented on the first petition.
When the trial court stated that Kristine was hoisted upon her own petard, it relied upon a line of cases from the Second District. See Tysl v. Levine, 278 Ill. App. 3d 431, 440, 662 N.E.2d 915, 921-22 (1996); In re Marriage of Berk, 215 Ill. App. 3d 459, 465, 574 N.E.2d 1364, 1368 (1991).
"The only reason that a change of custody would occur in this case is because Karen has made an 'irrevocable commitment' to move, even though the court determined that the move was not in the best interests of the children. Karen, in her own brief, argues that the decision was made to move even if the children could not come with her. Custodial parents and their spouses must remember that they do not make decisions in a vacuum. Decisions must be made in an environment in which the best interests of the children are paramount. This State's courts are in place to protect the children's interests and will not be intimidated or threatened by 'irrevocable' actions of parents. Karen has made her decision to move to Humboldt. She must now live with the consequences of that decision. The presumption of section 610 *** [in favor of continuing existing custodial relationships] is not applicable here." Berk, 215 Ill. App. 3d at 465, 574 N.E.2d at 1368.
This court, however, has rejected much of that reasoning. We disagree with any implication that a non-custodial parent is free to marry whomever he or she wants to, but a custodial parent is not. In re Marriage of Eaton, 269 Ill. App. 3d 507, 517, 646 N.E.2d 635, 643 (1995); In re Marriage of Deckard, 246 Ill. App. 3d 427, 434, 615 N.E.2d 1327, 1333 (1993). The trial court cannot order a custodial parent to remain in the state, nor can the trial court hold it against her if she legitimately decides to leave. Where the custodian will choose to leave the state without the children if the petition for removal is denied, a trial court that does not consider whether, e.g., the children are better off out of state with the custodian or in state with the non-custodian, is ignoring reality. In re Marriage of Creedon, 245 Ill. App. 3d 531, 536, 615 N.E.2d 19, 23 (1993). An ex-wife who chooses to remarry and move out of state cannot be criticized for that decision, in the absence of any showing that she did so in an attempt to frustrate visitation or interfere with the relationship between the ex-husband and the child. Wycoff, 266 Ill. ...