                                        2014 IL App (1st) 141214


                                                                            FIFTH DIVISION
                                                                            September 12, 2014


No. 1-14-1214


In re PARENTAGE OF                                              )
ROGAN M.                                                        )   Appeal from the
                                                                )   Circuit Court of
(Keisha M.,                                                     )   Cook County
                                                                )
                Petitioner-Appellant,                           )   No. 08 D 79237
                                                                )
v.                                                              )
                                                                )   Honorable
John M.,                                                        )   Ellen L. Flannigan,
                                                                )   Judge Presiding.
                Respondent-Appellee).                           )


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


                                             OPINION

¶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
1-14-1214


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 that order. 1

¶4                                         ANALYSIS

¶5     Keisha first argues the trial court erroneously applied the "clear and convincing" standard

to the removal proceedings. In Illinois, "civil cases generally require the lesser 'preponderance'

standard of proof." In re D.T., 212 Ill. 2d 347, 362 (2004). Nevertheless, the legislature may

choose to impose a more exacting standard via statute. In re Marriage of Wechselberger, 115 Ill.

App. 3d 779, 785-86 (1983). Absent a statutorily assigned evidentiary standard, the

preponderance standard shall apply. See, e.g., In re Enis, 121 Ill. 2d 124, 131-32 (1988).

Application of the improper evidentiary standard amounts to reversible error. See id. at 134.

¶6     The parties in this case dispute whether the clear and convincing standard is required in

removal proceedings under the Illinois Marriage and Dissolution of Marriage Act (Marriage Act)

(750 ILCS 5/101 et seq. (West 2012)). Section 609 of the Marriage Act specifically addresses

the issue of removal and provides in relevant part:

       "The court may grant leave, before or after judgment, to any party having custody of any

       minor child or children to remove such child or children from Illinois whenever such

       approval is in the best interests of such child or children. The burden of proving that such



1
  We have presented only the limited facts and procedural history necessary for the disposition of
this appeal. A more thorough discussion of the facts is detailed in our prior opinion dismissing
this matter for lack of jurisdiction. See In re Parentage of Rogan M., 2014 IL App (1st) 132765.
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       removal is in the best interests of such child or children is on the party seeking the

       removal." 750 ILCS 5/609(a) (West 2012).

While section 609 identifies with whom the burden of proof rests, it does not set forth a quantum

of proof for removal petitions. See id. Because the statute is silent as to this information, the

preponderance of the evidence standard presumably would apply.

¶7     According to John, however, section 610 of the Marriage Act assigns the clear and

convincing standard to removal petitions under section 609 by reference. Section 610 provides,

in relevant part, "[t]he court shall not modify a prior custody judgment unless it finds by clear

and convincing evidence *** that the modification is necessary to serve the best interest of the

child." 750 ILCS 5/610(b) (West 2012). John asserts a removal petition amounts to a petition to

modify custody and, therefore, the clear and convincing standard should apply.

¶8     This court has stated on several occasions that a removal petition is not a petition to

modify custody under section 610 of the Marriage Act. In re Parentage of Rogan M., 2014 IL

App (1st) 132765, ¶ 23 ("[S]imply because removal is related to custody does not mean we

should consider a removal order to be a *** modification of custody for the purposes of

jurisdiction."); In re Marriage of Bednar, 146 Ill. App. 3d 704, 710 (1986) ("The fact that

[respondent's] custodial rights will be affected by removal [citation], does not also mean that her

rights will be modified as a matter of law pursuant to [section 610 of the Marriage Act]."

(Emphasis omitted.)); In re Marriage of Mueller, 76 Ill. App. 3d 860, 862 (1979) ("[A]lthough

[respondent] describes the order [at issue] as one relating to custody and visitation, the order on

its face deals with removal and visitation and not at all with custody." (Internal quotation marks

omitted.)). Accordingly, we find the trial court erred in applying the more stringent clear and

convincing standard. We therefore need not address Keisha's remaining argument and reverse



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and remand for application of the preponderance of the evidence standard.

¶9                                       CONCLUSION

¶ 10   For the foregoing reasons, we reverse the decision of the trial court and remand for

further proceedings consistent with this opinion.

¶ 11   Reversed and remanded.




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