                                  Illinois Official Reports

                                          Appellate Court



                      In re Parentage of Rogan M., 2014 IL App (1st) 141214



Appellate Court              In re PARENTAGE OF ROGAN M. (Keisha M., Petitioner-
Caption                      Appellant, v. John M., Respondent-Appellee).


District & No.               First District, Fifth Division
                             Docket No. 1-14-1214


Filed                        September 12, 2014


Held                         The denial of petitioner’s request to remove the parties’ child from
(Note: This syllabus         Illinois to California based on a change in her employment was
constitutes no part of the   reversed on the ground that the trial court improperly applied the clear
opinion of the court but     and convincing evidence standard, rather than the preponderance of
has been prepared by the     the evidence standard, even though respondent argued that section 610
Reporter of Decisions        of the Marriage and Dissolution of Marriage Act, which assigns the
for the convenience of       clear and convincing evidence standard to custody modification cases,
the reader.)                 applied to petitioner’s case, since the petition dealt with the removal of
                             the child to California and the potential problems with respect to
                             visitation, neither of which should be considered a modification of
                             custody for purposes of section 610; therefore, the denial of the
                             petition was reversed and the cause was remanded for application of
                             the preponderance of the evidence standard.




Decision Under               Appeal from the Circuit Court of Cook County, No. 08-D-79237; the
Review                       Hon. Ellen L. Flannigan, Judge, presiding.




Judgment                     Reversed and remanded.
     Counsel on                Maricarol Lacy and Nicole M. Onorato, both of Rinella & Rinella,
     Appeal                    Ltd., of Chicago, for appellant.

                               James M. Quigley and Matthew D. Elster, both of Beermann Pritikin
                               Mirabelli Swerdlove LLP, of Chicago, for appellee.

                               Lester L. Barclay, of Barclay Law Group, P.C., of Chicago, for child
                               representative.




     Panel                     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
       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

             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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       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 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 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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