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In re Custody of G.L.

Court of Appeals of Illinois, First District, Third Division

May 31, 2017

Sarah Finn f/k/a Sarah Czerwinski, Respondent-Appellant. Matthew L., Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County. No. 13-D-79172 Honorable Mary C. Marubio, Judge, presiding.

          JUSTICE COBBS delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.



         ¶ 1 Respondent Sarah Finn, formerly Sarah Czerwinski, appeals from the trial court's order granting respondent Matthew L. the majority of parental decision making responsibilities and parenting time in regards to their minor child, G.L. She contends that the Cook County circuit court failed to consider all statutory factors in determining the best interests of G.L. and improperly considered testimony regarding school quality. She also argues that the trial court's findings were against the manifest weight of the evidence and that the court erroneously restricted her parenting time to locations within a one-hour drive of Matthew's home. We affirm in part, vacate in part, and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 Sarah and Matthew met in 2009 and began living together. Their son, G.L., was born on September 4, 2010. The three lived together on the north side of Chicago until December 2012, when Sarah left the joint residence and brought G.L. to live in her grandparents' house in Oak Lawn, Illinois. On February 1, 2013, Matthew filed a petition to determine the existence of a parent and child relationship seeking, inter alia, to allocate the parental responsibilities regarding G.L. Steven Wasko was appointed guardian ad litem for G.L. on April 9, 2013.

         ¶ 4 In April 2013, Sarah and G.L. moved into her boyfriend Travis Finn's apartment in Sidney, Illinois, in Champaign County. On May 24, 2013, Matthew filed an emergency petition for temporary possession of the child, which protested Sarah's relocation to Champaign County. In the petition, Matthew alleged that he had maintained "consistent and extensive parenting time" with G.L. since the separation but on May 21, 2013, Sarah had informed him that he would need to travel to Kankakee, Illinois, if he wished to have time with G.L. He also alleged that he and Sarah had previously agreed to place G.L. in a Chicago-area daycare center. However, Sarah had recently and unilaterally stopped bringing G.L. to the daycare center. On May 29, 2013, the trial court entered a written order finding that an emergency existed and ordering the parents to "maintain the status quo" regarding G.L.'s daycare.

         ¶ 5 On June 24, 2013, a hearing was scheduled to take place on the petition, but a judge was not available. Instead, Matthew and Sarah negotiated an agreed order for temporary custody of G.L. The parties agreed that Matthew would care for G.L. for three weekends and one full week each month and Sarah would care for G.L. for the remainder of the month.

         ¶ 6 In August 2015, Sarah and G.L. moved into a hotel for two weeks after Travis Finn, whom Sarah had married in June 2013, obtained an order of protection against her. Matthew filed an emergency petition for temporary custody of G.L. on August 21, 2015. On September 2, 2015, the trial court found that an emergency no longer existed because Sarah and G.L. had returned to their residence with Finn. Finn subsequently filed for divorce, and Sarah moved with G.L. to nearby Philo, Illinois.

         ¶ 7 On August 3, 2016, the trial court gave the parties leave to amend their pleadings to comply with the Illinois Parentage Act of 2015 (Act) (750 ILCS 46/101 et seq. (West Supp. 2015)), which had become effective on January 1, 2016. Matthew subsequently filed a petition for allocation of parental responsibilities seeking all parental responsibilities and decision making authority, the majority of parenting time, and the relocation of Sarah and G.L. to Cook County.

         ¶ 8 Sarah filed a counterpetition on August 11, 2016. Sarah sought the majority of parenting time and to have her residence declared G.L.'s primary residence to allow his enrollment in the Champaign County public school system. She subsequently enrolled G.L. in kindergarten in Philo in September 2016.

         ¶ 9 The trial court held an evidentiary hearing in October 2016. At the hearing, Sarah testified that G.L. was born in 2010. She, Matthew, and G.L. lived together on the north side of Chicago until the end of 2012. During that period, she took care of G.L. "the majority of time, " and Matthew took care of him "very little." In December 2012, Sarah moved with G.L. into her grandparents' empty house in Oak Lawn. She testified that she moved because she did not "feel it was safe" after Matthew had angrily chased her out of the shower and "tr[ied] to rape" her. She lived in Oak Lawn with G.L. until April 2013 when she decided to move down to Champaign County to enroll in a cheaper nursing school, which she attended for one semester. She informed Matthew of her decision, and he became "aggressive." She first heard of the custody proceedings in May, when Matthew filed the emergency order regarding her move. After moving in with her then-boyfriend Finn in Champaign County, Sarah enrolled G.L. in preschool and regularly kept Matthew informed of events in G.L.'s life. She described her employment with a State Farm insurance agent but explained that she works for the agent, not the corporation itself, and thus she could not easily transfer to the Chicago area. Her current home with G.L. is a two-bedroom, single-family home with large yards and a playground nearby. G.L. has many neighborhood friends, as well as school friends. He is involved in sports and loves his school. Sarah admitted that she had never filed a petition to relocate. She additionally testified that there were periods where she failed to cooperate with court-appointed evaluators, but they were due to an inability to pay and not due to unwillingness.

         ¶ 10 Matthew testified that after G.L.'s birth, he and Sarah divided the child's care roughly equally. Although Matthew was working two jobs at the time, he would bathe, change, and feed G.L. when he got home at night. Around the time of G.L.'s first birthday, Matthew was laid off from work and took care of G.L. the majority of the time because Sarah was in school. When Sarah started school, they both agreed on a local daycare center for G.L. The couple separated in late 2012 because Sarah began seeing Finn. Matthew attempted to talk with Sarah several times about how to divide parental responsibilities, but she never responded. Sarah eventually moved to Oak Lawn with G.L., but Matthew continued to care for G.L. 60 to 70% of the time. In March or April 2013, Sarah told Matthew that she was planning to move to central Illinois, and Matthew responded that was unacceptable. He became aware that she had moved at the end of May 2013 when she texted him that he would have to drive to Kankakee if he wanted his time with G.L. Matthew takes care of G.L. during his parenting time and takes him to museums and parks around Chicago. Sarah refused to tell Matthew where she and G.L. were living both when she moved into the hotel and later when she moved from Finn's home following her divorce. She did not inform or consult him regarding matters of G.L.'s education and extracurricular activities, including his preschool graduation. She scheduled ear surgery for G.L. without consulting Matthew. Several times when Matthew dropped off G.L. with Sarah, G.L. threw "temper tantrums" and refused to leave him. Matthew further testified describing his two-bedroom home in Wilmette.[1] He noted that the schools in the area are highly rated and were ready to accept G.L. as a student depending on the court's order. Matthew denied Sarah's allegation that he attempted to sexually assault her.

         ¶ 11 Phyllis Gould, a licensed clinical social worker appointed by the court as an independent child-custody evaluator, testified that she had created an independent child-custody report and later supplemented that report. Both the original report and the supplemental report were entered into evidence, although they are not a part of the record on appeal. Gould indicated that she had diagnosed Sarah with borderline personality disorder and commented on Sarah's "extreme displays of anger." She also noted she had diagnosed Matthew with persistent depressive disorder and he also had difficulty controlling his anger. She described concerns involving both of the parents' prior use of drugs and alcohol but noted that there was "no concrete evidence of either one abusing drugs or alcohol at the moment." Gould testified that G.L. had separation-anxiety disorder and struggled with leaving either parent. His condition was further exacerbated by the multiple moves he had made as a child. She opined that the three-hour drive between Matthew's home in Wilmette, Illinois, and Sarah's home in Philo was not good for him and "it's just not workable." Gould evaluated the school districts in Wilmette and Philo and explained that the schools in Wilmette were ranked significantly higher and were "clearly going to help [G.L.] more academically." She testified that Matthew, who worked as a union plumber, would have significant difficulty finding comparable work and compensation if he were to move to Champaign County. Sarah, who worked for State Farm, could likely find similar employment near Chicago. Gould recommended joint parental responsibility and an equal split of time between Matthew and Sarah. She further recommended that Sarah relocate closer to Matthew's home because it was "absolutely" not in G.L.'s best interests for his parents to live 170 miles apart.

         ¶ 12 Wasko, the guardian ad litem, testified that he had reviewed Gould's independent child- custody report and the supplemental report and he concurred with Gould's recommendations. In August 2015, Wasko became aware that Sarah had moved into a hotel after an order of protection was ordered against her. Sarah had not notified him of the change in address. The court ordered Wasko to meet with G.L. due to the change. G.L. indicated that he was not eating actual meals, but rather snack foods like "candy snacks" and bananas. This caused Wasko concern. Also, Sarah infrequently communicated with him, including failing to notify him when G.L. required ear surgery. Wasko further testified that the three-hour drives between parents were not in G.L.'s best interests and that his enrollment in kindergarten in Philo prevented Matthew's weekday parenting time. He described Matthew's home as a "very nice suburban home" and said that G.L. was proud of his bedroom there. Sarah's counsel denied Wasko's request to visit her home. G.L. has a strong relationship with both parents, and neither parent mistreated the child. Wasko recommended that Sarah return to Cook County and that G.L. be placed in the Wilmette school system. He created a full report that was admitted into evidence, but it is not in the record on appeal.

         ¶ 13 Joseph Strong, a representative of Matthew's union, testified that plumbers in the union in Cook County make $48.25 per hour, with a benefit package equivalent to about $76 per hour. Union plumbers in Champaign County make $41.06 per hour. An individual could transfer from the Cook County area union into the Champaign County union, but the new union's members would get preference over the transferring member. The transferring member could also lose his or her pension and any welfare benefits.

         ¶ 14 Janet Ambrosini, Matthew's mother, testified that she had previously flown from her home in California to Chicago for a week most months to help Matthew take care of G.L. She has a very good relationship with G.L., as does Matthew. Susan Dutca, Matthew's girlfriend, testified that Matthew has an "extremely close" relationship with his son and that G.L. is his "top priority." She described Matthew's Wilmette home as "very clean" and explained that Matthew cooks for G.L. Neither Matthew nor Susan ever spoke negatively of Sarah to G.L.

         ¶ 15 Caren Chiuccariello, Sarah's mother, [2] testified that during the first year following G.L.'s birth, Sarah primarily took care of the child and the couple's home. Chiuccariello indicated that Sarah was a patient and "awesome" parent. She also once saw Matthew put "his chest *** up to [Sarah] and he pushed her" during an argument. She opined that Sarah's move to Champaign County has been positive for her. She ...

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