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In re Collingbourne

May 22, 2003


The opinion of the court was delivered by: Chief Justice McMORROW


Docket No. 94677-Agenda 15-March 2003.

Soryia Collingbourne, the custodial parent of the parties' minor son Tyler, filed a petition in the circuit court of Kane County for leave to remove Tyler from the State of Illinois to Massachusetts. The circuit court granted the petition for removal, finding that the best interests of Tyler would be served by allowing him to move to Massachusetts with his mother. A majority of the appellate court reversed, holding that the circuit court's decision to grant the petition for removal was against the manifest weight of the evidence. 332 Ill. App. 3d 665. For the reasons that follow, we reverse the judgment of the appellate court.


Soryia and Geoff Collingbourne were married on June 13, 1985. As a result of the marriage, two children were born to the parties: Geoffrey, born January 11, 1986, and Tyler, born January 10, 1991. The parties' marriage was dissolved on September 1, 1999. The judgment for dissolution of marriage incorporated a marital settlement agreement, which provided that although Soryia and Geoff were to have joint custody of the children, Soryia was awarded sole physical custody of Tyler, and Geoff was awarded sole physical custody of Geoffrey. The marital settlement agreement also incorporated a joint parenting agreement. The joint parenting agreement reiterated that although the parties were awarded joint custody of both children, the physical custody of the children was split between the parents. The joint parenting agreement specifically provided that both parties were to have equal rights and responsibilities for the major decisions in connection with the education, recreation, health care and religious training of the children. However, the agreement left day-to-day decisions with respect to the children within the sole discretion of the custodial parent. The joint parenting agreement also set forth the visitation schedule between the parents and the children. Each parent was to have both children every other weekend, and the parties agreed to have the children on alternate holidays. The agreement also allowed additional visitation, as authorized.

On June 15, 2001, Soryia petitioned the circuit court of Kane County for the removal of Tyler, then 10 years of age, from Illinois to the State of Massachusetts. In her petition, Soryia alleged that she had become engaged to Mark Rothman, who resided in Sharon, Massachusetts. For the past 11 years, Mark had owned and operated his own business in Sharon, Mark Rothman & Associates, and his business prevented him from relocating from that geographic area. Soryia also alleged in her petition that upon moving to Sharon, she would become an employee of Mark's business, earn an annual base salary of $75,000, and, due to a series of incentives, had the potential to increase her income up to $100,000 per year. Soryia stated that she was currently employed by PetAg, Inc., with a base annual salary of $50,000. Soryia alleged, however, that her employment with PetAg was "in jeopardy due to the company's severe financial difficulties." Soryia stated that PetAg plant workers "have had their pay cut up to 50%," and that because "[c]ompany bonuses have been terminated due to said financial problems," she did not receive her quarterly financial bonus.

Soryia further alleged in the petition that, in addition to the better financial opportunity that the move to Massachusetts would provide, she would also not be required to travel on overnight business trips, as she was frequently required to do as part of her employment with PetAg. Soryia also stated that in her new position she could structure her work hours so that she could be home with Tyler before and after school. Soryia contrasted this with her current work arrangement, which required Tyler to spend one hour in the morning and two hours after school in day care. During the summer months, Tyler's time in day care increased to nine hours per day, coinciding with Soryia's work schedule. Soryia alleged that Tyler "expressed his displeasure" with this situation.

In addition, Soryia alleged that under her current work arrangement, it was difficult for Tyler to engage in extracurricular activities. According to Soryia, if she and Tyler were allowed to move to Massachusetts, Tyler could become involved in many extracurricular activities, including sports, music, theater, and dance. Soryia also alleged that Tyler would reap an academic benefit from the move, based upon her opinion that the Sharon school district was "significantly better" than the Hampshire school district in which Tyler was currently enrolled.

Soryia further alleged in the petition that Tyler's residence and community would be enhanced, as the move would allow Tyler to live in a three-bedroom, 3,000 square foot home, surrounded by woods. At the time Soryia filed the petition, she and Tyler were living in a two-bedroom apartment in Huntley, which afforded Tyler with limited access to children of his own age.

Soryia also alleged in the petition that Geoff "has not actively participated" in Tyler's day-to-day life, and that on numerous occasions Geoff has worked on Saturdays rather than spend his entire scheduled visitation time with Tyler.

In sum, Soryia alleged that as a result of the financial and other opportunities offered by the move, the quality of both her and Tyler's lives would be significantly enhanced. Soryia alleged that bettering the quality of life for both herself and Tyler was the only motive for her move. As evidence of her good faith, Soryia proposed a visitation schedule that would provide Geoff with more time with Tyler than he had under the existing visitation arrangement, with visitation periods of an extended duration. With respect to visitation between Tyler and his brother Geoffrey, Soryia noted that Geoffrey was nearly 16 years old and that he and Tyler did not share many of the same interests and did not spend a substantial amount of time together. Nevertheless, under the proposed visitation schedule, Soryia asserted, they would also have an increased amount of visitation time together.

On July 12, 2001, Geoff filed his answer to Soryia's removal petition. Geoff denied that he was not actively involved in Tyler's life, and also denied that he chose to work on Saturday rather than spend scheduled visitation time with Tyler. Geoff did admit, however, that due to his profession as an electrician, he sometimes had to work on Saturday mornings during the summer, and that this conflicted with the scheduled visitation.

It was Geoff's position that Soryia was seeking to improve only the quality of her own life, and that Tyler's quality of life would be adversely affected if Tyler were separated from his father, brother, extended family, friends, and the community in which he had been raised. Geoff also stated that both his fiancee, Carol Lynn, and his sister, Lori Price, had offered to provide occasional day care for Tyler. In addition, Geoff observed that the Hampshire park district could provide Tyler with the opportunity for several extracurricular or after-school activities. Geoff maintained that Soryia's proposed visitation schedule would deny him ongoing contact with Tyler, and would deny Tyler contact with his brother. Geoff maintained that his objections to Tyler's removal were in the child's best interests, and requested that the court deny the removal petition. Geoff further stated that if Soryia chose to move to Massachusetts without Tyler, Tyler's physical custody should be transferred to him and a visitation schedule between Tyler and his mother should be entered.

The circuit court held a hearing on Soryia's petition over several days during the month of August 2001. Soryia testified that she is employed as a national sales manager by PetAg, Inc., which is located in Hampshire. Soryia earned an annual base pay of $50,000, which, in the past, had been increased by quarterly bonuses pegged to the company's profits. For example, in the year 2000, Soryia earned a $6,000 bonus. However, because the company has experienced financial difficulties, no bonuses were paid in 2001. According to Soryia, her job routinely required her to travel on overnight business trips. However, due to the company's financial problems, her travel had decreased. As examples of the company's financial problems, Soryia stated that the corporate credit card that employees used to cover travel expenses was discontinued due to nonpayment, merchandise vendors required that the company pay up front for purchases, and some plant workers experienced a 50% cut in pay. Soryia stated that in an attempt to seek other employment she had placed her resume on a web site. However, she also admitted that she did nothing else to seek other employment in this geographic area.

Soryia testified that she resided with Tyler in a two-bedroom apartment in Huntley, and that Geoff lived with Geoffrey in a single-family home in nearby Hampshire. According to Soryia, upon the dissolution of their marriage the parties agreed to split the physical custody of the boys because Geoffrey is very active in the community and in sports, and has had a very close relationship with his father. Soryia testified that she had exercised all of her visitation with Geoffrey, but, that due to work commitments, Geoff had missed a portion of between 15 and 20 Saturdays of his visitation with Tyler in the year 2000. Soryia further stated that Geoff's visitation with Tyler was otherwise consistent, and that the parties often spent time with the children during the weekdays that was in addition to that set forth in the joint parenting agreement. Soryia testified that under the agreement, Geoff would care for Tyler when her employment required her to make overnight business trips, which averaged about two times per month. In September 2000, however, Geoff accepted a new job that required him to leave home very early in the morning. Because she did not want Tyler to get up so early and be dropped off at day care for several hours before school started, Soryia hired a baby-sitter to stay with Tyler in their apartment on the nights that she traveled, and to then take him to school in the morning. According to Soryia, Geoff did not object to this arrangement.

Soryia testified that she believes that Tyler's relationship with his father is "very important," and that she has strived to further this relationship, as well as Tyler's relationship with Geoff's extended family. For example, Soryia stated that it was a tradition that the children spend holidays and family events with Geoff's family, and that if those occasions fell on her scheduled weekends, she would nevertheless allow the children to stay with Geoff. Soryia stressed that she does not want to limit Geoff's access to Tyler.

With respect to Tyler's extracurricular activities, Soryia explained that although Tyler's school day ended at 2:30 p.m., it was difficult for him to become involved in extracurricular programs offered by the school or the Huntley or Hampshire park districts because most programs ended in the early afternoon and required that a parent pick up the child at that time. Because Soryia's work day extended until 5 p.m., she was unable to accommodate this time schedule. As another result of Soryia's work schedule, Tyler had to attend day care for an hour in the morning before school and for approximately two to three hours after school. Soryia testified that it was only after she picked up Tyler from day care that a period of time commenced within which Tyler would do homework, go to the park, or participate in other activities in which he was interested. For example, in the previous fall Soryia was able to enroll Tyler in a dance program that held classes in the evening. Tyler apparently enjoyed the program, and Geoff attended the dance recitals. Soryia also testified that Tyler had not participated in any extracurricular activities over the summer because he had to attend day care during the hours that she worked. According to Soryia, Tyler is unhappy in day care.

Soryia stated that on one occasion, after the removal petition had been filed, Tyler told her that Geoff's sister, Lori Price, had offered to watch him periodically so that he did not have to go to the day care center every day. Soryia stated that she did not speak with Lori, and that she told Tyler that discussions about his care were between her and his father. Soryia further testified that on a different occasion Tyler informed her that Geoff's new wife, Carol Lynn, had also offered to provide some child care. Soryia testified that she thought it was "inappropriate" for these offers to be relayed through Tyler, and that they should be discussed between the parties. Soryia stated that she did not accept the offer.

With respect to Tyler's education, Soryia stated that Tyler attends Hampshire Elementary School and had just completed the fourth grade. According to Soryia, in the past year Geoff had not attended Tyler's parent-teacher conferences and rarely attended activities at Tyler's school. Soryia confirmed that Geoff occasionally attended such events in the past. Soryia stated that although the Hampshire schools, in her opinion, are "adequate," she believed that Tyler would receive a better education in Sharon, Massachusetts. Soryia testified that as part of her research into the Sharon school system, she reviewed statistics which she purchased over the Internet, contacted the Sharon schools, and spoke with the Sharon school superintendent. Based upon her research, Soryia was of the opinion that the Sharon school district could offer Tyler not only a superior education, but also greater opportunities for extracurricular activities. Soryia explained that, based upon her research, she believed that the ACT and SAT scores earned by Sharon students were higher than those of students in Hampshire, that the student-teacher ratio in the Sharon schools is lower than that in Hampshire, and that the percentage of Sharon students who go on to attend a four-year college is higher than in Hampshire. Soryia stated that these facts were very important to her, as her ultimate goal is that Tyler attend college. In addition, Soryia stated that the Sharon school system has an after-school "community enrichment" program where students are transported from the school to various sites to engage in activities such as videomaking, horseback riding, and cooking. Further, if Tyler were allowed to move, Soryia stated, the school he would attend is located seven minutes from Mark's home. Tyler could take the bus, or Soryia could drive or walk him there.

Soryia also testified that although Tyler is still in elementary school, his brother Geoffrey attends high school. Because Tyler and his brother have a five-year age difference, they also have different interests. According to Soryia, Geoffrey is very active in soccer, and has played both on local teams and on teams which have traveled to soccer meets in different cities and states over the weekends. Soryia described the relationship between Tyler and Geoffrey as a "love-hate relationship."

Soryia further testified that she became engaged to Mark Rothman earlier in the year, after a relationship of about 1½ years. Mark resides in Sharon and, for the past 11 years, has owned and operated his own business, Mark Rothman & Associates. Soryia stated that Mark is a manufacturer's representative for various companies involved in the pet supply and home decor field, and that his territory is the New England area exclusively. According to Soryia, she and Mark discussed the possibility of his moving to Illinois and concluded that it would be impossible because of the business. Mark offered to employ Soryia in his business in a position similar to her position at PetAg, but at an increased annual salary of $75,000. The hours of the job would be structured so that she would work only during Tyler's school hours and be at home with him when he returned. Soryia stated that the offices for the business are in Mark's home, which has three bedrooms and is located on 1.5 acres, with a large yard in a wooded area. According to Soryia, the home is approximately 30 minutes from the Boston, Massachusetts, and the Providence, Rhode Island, metropolitan areas. Soryia testified that she and Mark had not yet set a wedding date because she could not move to Sharon without the court's permission to take Tyler with her.

Soryia stated that she met with Geoff on three occasions to speak with him about the enhanced opportunities offered by the move to her and Tyler, and to attempt to arrive at an understanding. Soryia further stated that she had also discussed a proposed visitation schedule with Geoff, and had emphasized to him that she would do whatever it would take to make the move work for everyone involved. According to Soryia, the proposed visitation would be at least as extensive as presently exists.

Soryia testified that she proposed that Tyler would visit with Geoff for 8 to 10 weeks during the summer, and for one week each in February and April to coincide with two vacation breaks given by the Sharon school system. In addition, Geoff would have Tyler for long holiday weekends such as Memorial Day, Labor Day, and Columbus Day, as well as for Thanksgiving and Christmas break. Soryia stated that she wanted to continue the tradition of having Tyler spend the holidays with Geoff and Geoff's extended family in Illinois. Soryia testified that she would accompany Tyler on the trips to Illinois until he got older, and that she would pay for all transportation costs. Soryia estimated that, depending upon traffic and other factors, the trip each way would take between 3 and 5 ½ hours. She also stated that she had no objection to Geoff's coming to Sharon to visit with Tyler. Soryia also testified that she would promote, at her expense, frequent phone calls and e-mails between Tyler and Geoff, and that she would also provide Geoff with information concerning Tyler's school events. Soryia stated that Tyler and Mark interacted "very ...

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