Resolution of child custody issues — and particularly, the issue of removing the children from the jurisdiction — is often one of the most contentious points in a divorce proceeding. On Thursday, the Illinois Supreme Court handed down a decision in In re Marriage of Coulter which should make it easier for parties to resolve such issues between themselves, without court intervention.
When the parties divorced, they entered into a Joint Parenting Agreement (JPA), which the Circuit Court incorporated into the judgment of dissolution. The parties agreed to joint custody, with wife having primary residential custody. The JPA provided that wife could not remove the children to California, as she was contemplating, for two years. For twelve months after that, if wife gave notice of her intent to remove the children to California, husband could seek mediation; if the mediation failed, wife could remove the children, but husband retained the right to seek a court order determining a parenting schedule. (In case you’re wondering, the JPA applied only to moving to California — any other destination, and the usual provisions of the Illinois Marriage and Dissolution of Marriage Act, requiring court approval, apply.)
Five days before the end of the second year, the wife’s attorney gave the husband’s attorney notice of her intent to relocate to California. The husband neither responded nor requested mediation. Instead, two months before expiration of the three year limit, he filed an emergency petition seeking an injunction against the removal, and arguing that a hearing should be held to determine the children’s best interest. Husband argues that material circumstances had changed, and sought sole custody. For her part, the wife filed a petition for leave to remove. The Circuit Court denied the injunction, but the husband appealed. The Appellate Court reversed, applying the traditional four-factor test to determine that the husband might prevail, and noting that an injunction would "preserve the status quo."
After the reversal, the Circuit Court ordered wife to bring the children back to Illinois, but then the Supreme Court stepped in, staying the Circuit Court’s order.
Ultimately, Coulter is about reconciling two provisions of the Marriage and Dissolution of Marriage Act. According to Section 609(a), children can be removed from Illinois only with leave of court. On the other hand, Section 502 of the Act provides that an agreement between the parents may be incorporated into the judgment of dissolution, and enforced as a court order.
So if parties incorporate an agreement to allow removal of children into their divorce settlement, and the settlement is incorporated into the court’s judgment — is that the necessary permission to remove, without the need for a best-interests-of-the-children hearing?
The Supreme Court held that the answer was "yes," reversing the Appellate Court. By incorporating the JPA, the Circuit Court had accepted the parties’ agreement for removal, so the wife was free to remove the children; no motion for leave to remove was necessary. There was no need to separately determine the best interests of the children, in the Court’s view, since the JPA reflected an agreement between the divorcing spouses that removal was in the children’s best interests under certain settled circumstances.
The Court noted that its holding was supported by the strong public policy of Illinois to allow parties to resolve as many agreements as possible by agreement. Custody agreements are complex things, the Court observed; remove one thread — the parties’ agreement to allow removal — and there’s no telling what you might unravel. Failing to enforce the parties’ agreement would potentially undermine Section 502 of the Act as an expression of public policy.
But the husband was not without a remedy if he felt circumstances had changed, the Court noted in closing; he was free to pursue his still pending petition to modify the terms of custody.
