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SIXTH DIVISION

February 1, 2002

No. 1-99-3192

Petitioner George Lamberis appeals from the denial of hisrequest for injunctive relief. Although respondent TylishiaBarnwell did not file an appellee's brief, we will consider thisappeal pursuant to the principles set forth in First CapitolMortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,131-33 (1976).

On May 25, 1995, S.L. (minor child) was born in Cook County,Illinois. The record indicates that respondent, the minor child'smother, and petitioner agree that petitioner was named on the birthcertificate and in a 1997 administrative paternity order as theminor child's father. Respondent and petitioner were nevermarried.

In August 1999, petitioner filed an emergency petition forcustody, a temporary restraining order and a request for apreliminary injunction pursuant to sections 501(a), 601, 602 and603 of the Illinois Marriage and Dissolution of Marriage Act(Marriage Act) (750 ILCS 5/501(a), 601, 602, 603 (West 1998)), toprevent respondent from removing the minor child from Cook County,Illinois, to Florida. The court granted his request for a tempo-rary restraining order. Petitioner later moved to extend thisorder, but the court declared that, as a matter of law, it lackedthe authority to entertain the entry of an order enjoining respon-dent from removing the minor child. The court transferred thecause to the parentage division.

After a pretrial conference in that division, the courtentered an order denying petitioner's request for furtherinjunctive relief based upon In re Parentage of R.M.F., 275 Ill.App. 3d 43 (1995), and set a status hearing on the petition forcustody for September 23, 1999. Petitioner appeals, contendingthat the trial court erred, failed to enforce the provisions ofsection 501.1(e) of the Marriage Act (750 ILCS 5/501.1(e) (West1998)) and mistakenly treated this as a paternity case instead ofa custody case.

In disputes involving custody, the general and foremostconsideration is the best interests of the minor child. Hall v.Hall, 226 Ill. App. 3d 686, 689 (1991). This is true no matter theform of the proceedings used to determine custody, be it under theIllinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 (West1998)) or the Marriage Act. In re Custody of Bourey, 127 Ill. App.3d 530, 533 (1984); see In re Custody of Townsend, 86 Ill. 2d 502,515 (1981) (generally, facts surrounding a minor child's life aremerely factors used to ascertain what will serve best interests). Courts have granted natural but unmarried fathers severalprocedural routes to challenge custody and visitation. Kapp v.Alexander, 218 Ill. App. 3d 412, 415 (1991). These include theprovisions of the Marriage Act once the father has legallyestablished a father-child relationship. Kapp, 218 Ill. App. 3d at415; see In re Petition of Padin, 193 Ill. App. 3d 554, 558 (1989)(when parentage is not in dispute (i.e., legal presumption orjudicial determination already exists), unmarried father may seekcustody under Marriage Act).

R.M.F., relied upon by the court below in the instant case,dealt with an issue of first impression involving an unmarriedcouple and the mother's desire to remove the minor child fromIllinois. The court in that case analyzed whether sections of theParentage Act or section 609 of the Marriage Act, which ensuresthat removal is in the minor child's best interest and is not doneto frustrate the other parent, should apply to such a situation. The court found that the Parentage Act does not incorporate theMarriage Act and, thus, section 609 does not apply to unmarriedparents. R.M.F., 275 Ill. App. 3d at 52.

However, the court also declared that, regardless of whethera custody dispute is filed under either act, all such disputes areto be governed by the custody provisions of the Marriage Act. R.M.F., 275 Ill. App. 3d at 50-51. To modify custody or visitationunder the Marriage Act, the moving party must show (1) a change inthe circumstances of the minor child and (2) that modificationwould be in the minor child's best interests. R.M.F., 275 Ill.App. 3d at 50. Where the parents have never been married, the cus-todial parent's desire to leave Illinois with the minor child issufficient to demonstrate a change in circumstances, therebymeeting the first prong of the Marriage Act. R.M.F., 275 Ill. App.3d at 50-51. What is left, then, is an evaluation of the secondprong, or a determination of the best interests of the minor child. R.M.F., 275 Ill. App. 3d at 51. To accomplish this, the trialcourt would be required to hold a best-interests hearing undersection 602 of the Marriage Act. R.M.F., 275 Ill. App. 3d at 51.

Several cases follow the logic of R.M.F. Hall, which aroseeven before R.M.F. was decided, involved unmarried parents eachseeking custody of their minor child. The court reasoned that thestatutory factors of section 602 of the Marriage Act are key todetermining the minor child's custody, regardless of whether theminor child's parents were ever married. Hall, 226 Ill. App. 3d at689. Similarly, Tysl v. Levine, 278 Ill. App. 3d 431 (1996), wasdecided a year after R.M.F. and specifically relied upon that case. In Tysl, the parents of the minor child had never been married andthe mother sought to remove the minor child to Georgia. Inevaluating this situation, the court directed that pursuant toR.M.F., section 602 of Marriage Act must be used to determinecustody, even where the parents were not, nor had ever been,married. Tysl, 278 Ill. App. 3d at 436-37. And most recently, Inre Parentage of Melton, 314 Ill. App. 3d 476 (2000), followed thissame line of reasoning. In that case, the mother sought to removethe unmarried couple's minor child to Vermont and the father soughtto enjoin the removal. The court, referring to R.M.F., stated thatwhile the Parentage Act does not incorporate section 609 of theMarriage Act, a court considering the custody of a minor child"must look to the factors applicable to custody determinations" asset out in section 602 of the Marriage Act, regardless of which act(the Parentage Act or the Marriage Act) is the basis for the causeof action. Melton, 314 Ill. App. 3d at 480-81 (section 602'sfactors for determining custody guide all custody determinationsbecause they are the " 'relevant standards' " for determiningcustody).

In the instant case, petitioner and respondent were nevermarried nor does the record reflect that legal custody of the minorchild has ever been established in either party. However,petitioner's emergency petition for the restraining order andinjunction and respondent's cross-petition for custody both agreethat petitioner was named on the birth certificate as the minorchild's father and that an administrative paternity order wasentered finding him to be the minor child's father. Because ofthese judicial determinations and legal presumptions, petitioner,having established a father-child relationship, may seek custodyunder the Marriage Act.

Pursuant to R.M.F., then, respondent's desire to remove theminor child from Illinois to Florida is sufficient to demonstratea change in circumstances, thereby meeting the first prong of theMarriage Act. Now, what is left unresolved is the determination ofthe minor child's best interests regarding removal. The holdingsof R.M.F., Hall, Tysl and Melton make clear that a best-interestshearing under section 602 of the Marriage Act must be conductedhere, regardless of whether the parties were ever married or whatact petitioner relies upon for this cause of action.

Accordingly, the judgment of the circuit court of Cook Countyis reversed and this cause is remanded for further proceedings inthe trial court to determine the best interests of the minor childunder section 602 of the Marriage Act regarding removal from thisState.

Reversed and remanded with directions.

GALLAGHER, P.J., and CAMPBELL, P.J., concur.