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22 August 2000

No. 3--99--0984

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 2000

JUSTICE HOMER delivered the opinion of the court:

FACTS

Laurie McGillicuddy, f/k/a Laurie Hare, and Kevin Hare weremarried in 1986 and divorced in 1997. They have two children,11-year-old Nicholas and 7-year-old Morgan. When the marriagewas dissolved, both Kevin and Laurie lived in Macomb, Illinois.Pursuant to the joint parenting agreement, which was incorporatedinto the judgment for dissolution of marriage, Laurie wasdesignated the residential parent. However, physical custody ofthe children was split evenly between the parties. The partiesagreed that the children would stay with Laurie on Monday andTuesday and with Kevin on Wednesday and Thursday. Theyalternated weekends including Fridays.

In 1998, Laurie married Mike McGillicuddy. Mike received apromotion to an office in Springfield, Illinois, in November1998. In March 1999, the couple purchased a home in Springfield. The children remained in school in Macomb through the end of the1998-99 school year. Laurie moved to Springfield in the summerof 1999 and enrolled the children in Springfield schools. Thechildren began the 1999-2000 school year in Springfield.

Pursuant to article two of the joint parenting agreement,Kevin petitioned the court to name him the residential parent, asserting that it was in the children's best interests to livewith him in Macomb. At the hearing, Kevin testified that he hasalways been heavily involved in the care of the children,including attending parent-teacher conferences, doctor visits,and sports activities, as well as participating in the routinecare of the children. He coached Nicholas' Little League teamand helps with homework and school projects. He and the childrengo swimming, camping, fishing, and roller skating. The childrenhave aunts, uncles, cousins and paternal grandparents who live inMacomb.

Laurie testified that the 50-50 custody arrangement hadworked well. After moving to Springfield, Laurie offeredgenerous visitation arrangements to Kevin. Laurie testified thatboth Morgan and Nicholas were happy at the Springfield schools. She testified that, if she remained the residential parent, shewould give Kevin as much time as possible with the kids.

During an in-camera interview, the trial judge asked thechildren if they would like to stay in Springfield with theirmother and visit with their dad in Macomb on a regular basis orwhether they would rather live in Macomb. Nicholas respondedthat he might want to stay in Macomb and that he did not have anyfriends in Springfield. Morgan said she would like to live inMacomb.

Nicholas' teacher in Springfield testified that he is verycooperative and gets along well with other students. The teachertestified that Nicholas did not have any adjustment problems inSpringfield and he was performing at his grade level.

Kevin remarried in 1999, and his wife, Terry, testified thatshe has two children, who are 7 and 10 years old, and they getalong great with the Hare children. She said she would welcomethe Hare children into her home.

Laurie's husband, Mike, testified that he gets along wellwith the kids. He has two children from a first marriage thatget along well with the Hare children. He mentioned thatNicholas and Morgan had made friends in Springfield. The familyenjoys activities on the weekend such as boating and golfing.

In making his decision, the trial judge stated that thechildren indicated a preference to stay in Macomb and that almostall of the children's family and friends were in Macomb. Thejudge found that the schools in Springfield are equal to those inMacomb. The trial judge stated that because stability was theprimary goal in determining the children's best interests, he wasgranting Kevin's petition. The court denied Laurie's motion forreconsideration. She appeals contending that Kevin did not showby clear and convincing evidence that it was in the bestinterests of the children to modify custody.

ANALYSIS

The standard of review for modification of a child custodyorder after a dissolution judgment becomes final is whether themodification is against the manifest weight of the evidence orconstitutes an abuse of discretion. In re Marriage of Engelbach,181 Ill. App. 3d 563, 570, 537 N.E.2d 372, 377 (1989).

Kevin brought this petition pursuant to article two of thejoint parenting agreement which provides as follows:

"5. Should there be an occasion where theresidential parent moves from McDonough County orindicates that such a move is forthcoming the naming ofthe residential parent shall be reconsidered and shallbe decided by joint agreement of the parties, or if notagreed, determined according to the best interests ofthe children."

He contended that, since Laurie moved to Springfield, the namingof the residential parent should be reconsidered in light of the best interests of the children. Kevin asserted that it was inthe children's best interests to live with him in Macomb becausehe was very involved in their lives and their schools, friends,and family were in Macomb.

Section 610(b) of the Illinois Marriage and Dissolution ofMarriage Act (Act) provides in pertinent part:

"The court shall not modify a prior custody judgmentunless it finds by clear and convincing evidence, uponthe basis of facts that have arisen since the priorjudgment *** that a change has occurred in thecircumstances of the child or his custodian, or in thecase of a joint custody arrangement that a change hasoccurred in the circumstances of the child or either orboth parties having custody, and that the modificationis necessary to serve the best interest of the child." 750 ILCS 5/610(b) (West 1998).

This statute reflects a legislative presumption in favor ofthe custodial parent. Engelbach, 181 Ill. App. 3d at 570, 537N.E.2d at 377. Laurie asserts that as the named residentialparent she was entitled to this presumption, citing In reMarriage of Wycoff, 266 Ill. App. 3d 408, 639 N.E.2d 897 (1994),in support of her argument.

In Wycoff, the mother and father shared joint custody withthe mother being the physical custodian and the father havingvisitation rights. When the mother remarried and sought to moveout of the county, the father filed a petition for sole custody. The trial court terminated joint custody and awarded sole custodyto the father. The appellate court reversed noting that section610 of the Act creates a presumption in favor of the presentcustodian. Wycoff, 266 Ill. App. 3d at 410, 639 N.E.2d at 900. "By creating a presumption in favor of the present custodian, thelegislature in section 610 has sought to promote a stability andcontinuity in the child's custodial and environmentalrelationships which is not to be lightly overturned." Wycoff,266 Ill. App. 3d at 410, 639 N.E.2d at 900.

Laurie also relies on In re Marriage of Good, 208 Ill. App.3d 775, 566 N.E.2d 1001 (1991), where this court determined thatthe father, the physical custodian of the children, was entitledto a presumption favoring the existing custodial arrangement,even though he received a job transfer to Michigan. The courtnoted that custodial parents should not be expected to give upcareers for the sake of remaining in the same geographical area. Good, 208 Ill. App. 3d at 778, 566 N.E.2d at 1003.

We find that the instant case is factually distinguishablefrom Wycoff and Good because, here, the terms of the jointparenting agreement provided for reconsideration of theresidential parent in the event that Laurie moved from McDonoughCounty. By agreeing to those terms, Laurie waived thepresumption in favor of the physical custodian implied in section610 of the Act.

Accordingly, we need only determine whether the court'sdecision regarding the best interests of the children was againstthe manifest weight of the evidence. Section 602(a) of the Actsets out the relevant factors to be considered:

"(1) the wishes of the child's parent or parents as tohis custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the childwith his parent or parents, his siblings and any otherperson who may significantly affect the child's bestinterest;

(4) the child's adjustment to his home, school andcommunity;

(5) the mental and physical health of all individualsinvolved;

(6) the physical violence or threat of physicalviolence by the child's potential custodian ***;

(7) the occurrence of ongoing abuse ***; and

(8) the willingness and ability of each parent tofacilitate and encourage a close and continuingrelationship between the other parent and the child." 750 ILCS 5/602 (West 1998).

The record reflects that the trial judge considered all ofthese factors in making his ruling. Clearly, both Laurie andKevin are good parents and wish to have custody of the children. The children have a wonderful relationship with both parents, butthe court noted that the majority of the children's family andfriends were in Macomb. Both children expressed a desire to livein Macomb. The judge found that the schools in Springfield wereequal to those in Macomb and the record reflects that althoughthe children were doing well in Springfield, the judge determinedthat they were better adjusted to the Macomb schools. There areno indications that mental and physical health or physical abuseis an issue in the case sub judice. Finally, both parties werewilling to promote a strong and continuing bond with the otherparent.

It is always very difficult for a court to decide what is inthe best interests of the children when they have two equallydedicated and loving parents. The case at bar is even moreunusual because Kevin and Laurie were able to work out anadmirable arrangement where they each spent an equal amount oftime with the children. The trial judge indicated that stabilitywas an important consideration in determining what was in thechildren's best interest and decided that living with Kevin inMacomb would best promote this interest. It is apparent that thecourt took all of the proper factors into consideration, and wecannot say that this decision regarding custody and visitationwas against the manifest weight of the evidence.

CONCLUSION

For the foregoing reasons, the judgment of the circuit courtof McDonough County is affirmed.

Affirmed.

LYTTON and KOEHLER, JJ. concurred.