Appeals Court Lets Mother Keep Son Out Of State

Published In The Chicago Daily Law Bulletin:

A downstate appeals panel allowed a divorced mother with physical custody of a 3-year-old to remain in Ohio, overturning a trial court decision the judges deemed “arbitrary.”

A 5th District Appellate Court ruling this week authored by Justice Judy L. Cates granted the mother, Katherine A. Smith, permission to permanently remove her young son from Illinois in a joint custody arrangement with her ex-husband, Chase W. Smith.

The opinion partially overturned a ruling by 3rd Circuit Associate Judge Ben L. Beyers II, who denied the mother’s request during dissolution of marriage proceedings in June of this year.

In his decision, Beyers laid out two choices for the mother — either return to Illinois with the child in 30 days and be awarded split custody or remain in Ohio and get visitation rights while the father receives sole legal custody.

The appellate judges said that dichotomy “troubled” them.

“Such an alternative order implies that the minor child’s best interest will literally change overnight, depending on whether (the) [m]other opts to relocate to Illinois within 30 days or stay in Ohio,” Cates wrote in the ruling.

“Such an immediate and radical shift in the determination of what constitutes the ‘best interests’ of the child in a custody proceeding is not contemplated by the kind of alternative order entered by the trial court. It certainly is not contemplated by Section 602 of the Illinois Marriage and Dissolution of Marriage Act, which requires a detailed analysis of those factors to be considered when entering a custody award.”

Katherine had petitioned the court for temporary removal in 2011, when she got a marketing job in Columbus, Ohio, and sought to relocate with the couple’s son to a Columbus suburb.

She and her husband had lived in her parents’ basement in Maryville, Ill., after the birth of the child the previous year.

The husband worked at a mortgage servicing firm in St. Louis. She left her job at an advertising agency in Chicago to take care of the child.

But after only two months, their marriage soured and the husband moved out.

Katherine worked at a Home Depot while applying for more lucrative jobs in marketing that were located in the area, but received no offers until she was given the out-of-state position.

The husband contended that she was overly controlling during their time together and the trial court noted that she only spent four months looking for work before accepting the job in Ohio.

Testimony from a court-appointed guardian corroborated the notion that she “admittedly has a more rigid personality,” but the court noted that this was not unnatural for a first-time mother, nor was it necessarily a bad thing.

The court said she “is dedicated to the child’s best interest, from his nutrition and health care to his day care, schooling and personal safety.”

The appellate justices added that a “custodial parent is not required to exhaust all employment opportunities in Illinois before seeking employment out of state.”

And although the husband was more laid-back in his parenting style, the court said that had translated to ambivalence at times and the trial court’s decision to grant him custody if the mother did not return to Ohio would be against the child’s best interests.

Additionally, both parties agreed that the child was thriving at his home in Ohio.

“He is living in a good home with a number of nearby amenities including parks, a community swimming pool, high-quality schools and homes with younger children,” the court wrote.

“(The mother) has extended family in Ohio as well and her parents are trying to sell their home in Maryville so they can move to Ohio and be closer to their grandchild.”

While granting joint custody to the couple and allowing the mother to retain primary physical custody of the child in Ohio, the court “regretfully” remanded the case back to the trial court on the sole issue of working out a visitation schedule.

It also ruled the father should pay the mother $2,000 he owed in credit card debt that was incurred during the marriage.

Barbara L. Sherer, owner of the Law Office of Barbara L. Sherer in Edwardsville, represented Katherine. She said she has a lot of respect for Beyers, the trial court judge in the case, but is pleased the appellate court overturned the ultimatum he gave her client.  “It’s essentially a Hobson’s choice for parents,” Sherer said. “You either come back” or lose custody.

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