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In re Rogan M.

Court of Appeals of Illinois, First District, Fifth Division

September 12, 2014

In re PARENTAGE OF ROGAN M. (Keisha M., Petitioner-Appellant,
v.
John M., Respondent-Appellee)

Appeal from the Circuit Court of Cook County. No. 08 D 79237. Honorable Ellen L. Flannigan, Judge Presiding.

SYLLABUS

The denial of petitioner's request to remove the parties' child from Illinois to California based on a change in her employment was reversed on the ground that the trial court improperly applied the clear and convincing evidence standard, rather than the preponderance of the evidence standard, even though respondent argued that section 610 of the Marriage and Dissolution of Marriage Act, which assigns the clear and convincing evidence standard to custody modification cases, applied to petitioner's case, since the petition dealt with the removal of the child to California and the potential problems with respect to visitation, neither of which should be considered a modification of custody for purposes of section 610; therefore, the denial of the petition was reversed and the cause was remanded for application of the preponderance of the evidence standard.

For Appellant: Maricarol Lacy, Nicole M. Oronato, Rinella & Rinella, Ltd., of Chicago, IL.

For Respondent-Appellee: James M. Quigley, Matthew E. Elster, Beermann Pritikin, Mirabelli Swerdlove LLP, of Chicago, IL.

For Child Representative-Appellee: Lester L. Barclay, The Barclay Law Group, P.C., of Chicago, IL.

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.

OPINION

REYES, JUSTICE.

[¶1] Petitioner Keisha M. appeals the judgment of the circuit court denying her petition to remove her minor child from Illinois to California. On appeal, Keisha argues: (1) the trial court applied the improper evidentiary standard; and (2) the trial court's finding that removal was not in the child's best interests was against the manifest weight of the evidence. For the following reasons, we reverse and remand.

[¶2] BACKGROUND

[¶3] The parties to this dispute, Keisha M. and John M., gave birth to their son, Rogan M., in 2006. After their relationship ended two years later, Keisha and John agreed via settlement to a basic parental arrangement; both parents continued an active relationship with Rogan. In 2011, however, Keisha filed a petition to remove Rogan from Illinois to California due to a change in her employment. On July 31, 2013, following a trial, the circuit court denied Keisha's removal petition in a memorandum opinion and order, citing that Keisha had not " sustained her burden of proving by clear and convincing evidence that removal to California is in the best interest of Rogan." Keisha now appeals

Page 141

that order.[1]

[¶4] ANALYSIS


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