Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 10-F-31 Honorable David J. Dubicki, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Schmidt
PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.
¶ 1 The respondent, Jeremy Carter, appeals from an order of the trial court denying joint custody and awarding his former girlfriend, Jessica Shinall, sole custody of their three-year-old daughter, Ava. Jeremy also appeals the trial court's order granting Jessica's petition for removal of Ava from Illinois to Colorado. We affirm in part and reverse in part.
¶ 3 On September 26, 2008, Ava was born to Jessica and Jeremy, who lived together but never married. They separated in October of 2009. On January 14, 2010, Jessica filed a petition for paternity for an order declaring Jeremy the natural father of Ava. In his answer, Jeremy acknowledged paternity of Ava. Both parties requested an order regarding custody, support, and visitation. On April 27, 2010, a mediator's report indicated that there was no realistic likelihood of a mediated agreement. On June 15, 2010, Jessica filed a petition for leave to remove Ava from Illinois to Colorado, due to her recent engagement and upcoming wedding in August of 2010 to Nate Johnson, who resided in Colorado. Evidentiary hearings began on October 28, 2010, and continued through February 16, 2011.
¶ 4 At the hearings, evidence indicated that Jessica had sole custody of her 11-year-old son, Cesar, from her first marriage, which had been dissolved in December of 2003. In 2007, Jessica had earned her license to be a licensed practical nurse (LPN) and had had 8 jobs in the past 10 years. Jeremy had served in the Navy as a hospital corpsman from 1992 to 2003. After the Navy, Jeremy worked for Caterpillar from 2003 to the present and currently earned $78,336 per year plus medical and retirement benefits.
¶ 5 In January 2006, Jessica and Jeremy began dating. In October 2006, Jeremy, Jessica, and Cesar started living together in Chillicothe, Illinois. On April 13, 2007, Jeremy and Jessica became engaged to be married. On September 26, 2008, Ava was born, and both Jeremy and Jessica equally participated in her care. In October 2009, Jeremy and Jessica mutually agreed to separate due to disagreements regarding Cesar. Jessica moved two blocks away with Cesar and Ava. Without court intervention, the parties agreed upon a visitation schedule and child support. Jeremy paid $900 per month in child support in addition to half of Ava's day care. Jeremy's visitation schedule coincided with Jessica working 12-hour shifts as an LPN on Tuesdays and Thursdays and every other weekend, from Friday to Sunday. On Tuesdays and Thursdays Jessica took Ava to day care at 6:30 a.m., Jeremy picked her up at 5 p.m., and Jessica picked her up from Jeremy at 8 p.m.
¶ 6 On November 18 and 25, 2009, Jeremy's two grandmothers passed away. Unbeknownst to Jeremy, the same week Jessica began dating Nate Johnson. For a few months after their breakup Jeremy had attempted to reconcile with Jessica, sending her numerous text messages and e-mails. On one occasion he sent her over 100 text messages in 21/2 hours. On January 7, 2010, Jeremy began crying uncontrollably while holding Ava and begged Jessica to get back together with him. In January 2010, Jeremy called Jessica's mother, crying uncontrollably. On January 8, 2010, Jessica obtained an emergency order of protection against Jeremy, which was dismissed after the parties entered an agreed civil restraining order prohibiting each party from harassing, abusing, or threatening the other.
¶ 7 On November 23, 2009, Jessica had met Nate when he was in Illinois with his two sons visiting family members. Nate was in the Air Force and stationed in Colorado. He had joint custody of his two sons from a previous marriage, who resided with their mother in the same town as Nate, Colorado Springs, Colorado. After Nate and Jessica spent a few days together in November 2009, Nate left on deployment, and they continued to communicate long distance. They did not see each other again until March or April of 2010, and then tried to see each other once per month thereafter. In May of 2010, Jessica and Nate became engaged and married on August 10, 2010, in the Bahamas. On June 15, 2010, Jessica filed a petition to remove Ava from Illinois to Colorado. She also filed a similar petition to remove Cesar in a separate case.
¶ 8 After they married, Nate remained in Colorado, while Jessica continued to reside in Illinois. Jessica had been to Colorado twice since meeting Nate. Ava spent time with Nate whenever he visited Illinois and during her visits to Colorado. Ava had been to Colorado twice for a total of one week. Jessica planned to move to Colorado to be a stay-at-home mother until Ava went to kindergarten.
¶ 9 In February of 2010, Jeremy learned of Jessica's relationship with Nate by discovering their e-mails in an e-mail account that Jeremy had set up for Jessica. Jeremy learned of their engagement in May of 2010 through friends.
¶ 10 In coparenting Ava, Jessica and Jeremy primarily communicated via text messages or e-mails, and spoke in person once per week. Since November 2009, they had sent each other hundreds or thousands of messages regarding Ava's care. Various e-mail conversations between Jeremy and Jessica were entered into evidence, demonstrating they were cordial to each other while discussing issues regarding Ava, such as visitation arrangements, clothing items, doctors appointments, medication, and medical bills. Jessica acknowledged that the e-mails were not threatening or harassing; she testified that the e-mails were "fantastic."
¶ 11 Jessica testified that she did not believe that she and Jeremy could communicate well enough to share joint legal custody. Jessica cited, for example, that Jeremy was petty in his requests for specific clothing items to be packed for Ava, such as nice clothes for church or a swimsuit. Jessica felt Jeremy was being "nit-picky" when he pointed out a hole in Ava's sock. Jessica admittedly had taken Ava's wardrobe when she and Jeremy separated, but she believed that Jeremy was responsible for maintaining his own wardrobe for Ava. Jessica testified that at an exchange of Ava, Jeremy took a jacket and pair of shoes that he had purchased off of Ava, explaining to her that was the way Jessica wanted things.
¶ 12 Jessica and Jeremy also disagreed as to the proper treatment for Ava's ailments, such as a diaper rash or chapped lips. Jessica had also disagreed with Jeremy bringing Ava to urgent care for a fever of 101.5 degrees and urine that smelled of ammonia, which he informed Jessica of afterward. Jessica thought Jeremy should have communicated with her prior to taking Ava to urgent care, although she admittedly had taken Ava to the doctor without consulting Jeremy.
¶ 13 According to Jessica's witnesses, Jeremy had made disparaging comments about Jessica and Nate in front of Ava. Specifically, Jessica's friend testified that Jeremy called her a "home wrecker" in front of Ava, which Jeremy denied. Jessica testified that on April 4, 2010, Jeremy called her an "F'ing whore" in front of Ava, which Jeremy denied. After that incident, both Jeremy and Jessica decided to bring witnesses to their exchanges of Ava.
¶ 14 In June 2010, Jeremy threatened to obtain a restraining order against Nate because he escorted Jessica to pick up Ava after Jeremy had requested that Nate not be present at exchanges due to the tension. Jessica testified that after Jeremy became upset at Nate's presence, Jeremy attempted to pull his storm door closed, but it was propped against Jessica's arm and she was holding Ava in that same arm. Nate testified that on July 6, 2010, Jeremy called him an "F'ing punk" and shoved Ava into Jessica's arms, which Jeremy denied. Jeremy admitted that on that date he had told Nate to "go screw himself. On November 16, 2010, Jeremy became irritated that Jessica's parents arrived at his home to pick up Ava wearing Air Force jackets from Nate. Jeremy video-recorded the incident in Ava's presence for evidence that Jessica's parents were intentionally attempting to provoke him.
¶ 15 Jessica's parents testified that Jeremy was not friendly with them when they picked up Ava and would not speak to them unless he had to relay information about Ava. Jeremy testified that but for relaying information about Ava, he did not want speak to Jessica's parents because "everybody [was] supporting taking [Ava] away" from him and he did not want to say anything that could be wrongly interpreted as him having the wrong tone or demeanor.
¶ 16 In January of 2011, Jessica informed Jeremy and Ava's day-care provider, Marilyn Geltmaker, that on Tuesday, January 11, 2011, her mother was going to pick up Ava from day care early and, implicitly, Jeremy was expected to pick up Ava from Jessica's mother. At 2 p.m. on January 11, 2011, Jeremy called Geltmaker indicating that he was picking up Ava as usual that day. At 4 p.m., Geltmaker allowed Jessica's mother to take Ava. The following day Jeremy informed Geltmaker that, on the advice of his lawyer, the next time Ava was not there when he was scheduled to pick her up he would call the police and report Ava as a missing person. Geltmaker quit her job as Ava's day-care provider to ...