The mother petitioned the court to move with the minor child to Ohio. She had been offered a career position there. The trial court granted a temporary removal. The court would make a final decision at the end of the divorce case. At the end of the case, the court denied the mother’s request.

The court gave the mother two alternate rulings for custody and visitation. 1) Mother had to return to Illinois within 30 days. If she did so, she would retain primary physical custody of the parties minor child. Mother and Father would be awarded joint custody. Father, however, would have the ultimate decision-making authority if they could not agree. This would be for medical, dental, educational, and extracurricular decisions pertaining to their minor son. 2) Mother could choose not to return to Illinois within 30 days. Then, Father would be granted sole legal custody of the child with the Mother having only visitation rights and no decision-making authority concerning their son.

Mother appealed.

The Appellate Court did not agree with the Trial Court on this at all. It said that such an alternative order was wrong. It implied that the minor child’s best interest would literally change overnight. Depending on whether Mother chose to relocate to Illinois within 30 days or stay in Ohio. This certainly is not in the child’s best interest

Mother was being forced to choose between being gainfully employed or being unemployed. This could hardly be in the child’s best interest.

The Appellate Court also had trouble with the court’s decision to allow Father to have the sole decision-making power for the child. This was whether or not Mother returned to Illinois. The Court failed to see how this was in the child’s best interest. Father had shown that he was not fully concerned over a number of decisions regarding his son’s well-being. An example was the pediatrician’s recommendations.

The Appellate Court allowed Mother to remain in Ohio. She kept the primary physical custody of the parties minor child. Mother and Father shared joint custody and decision-making. The parents were granted joint custody.

IRMO Smith, 2013 IL App (5th) 130349

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