I l-12-01

RK.

Anorney CodeNo. 25521

. JA

INTHE CIRCUIT COURT OFCOOK COUNTY,ILLINOIS

COUNTY DEPARTMENT-DOMESTIC RELATIONS

IN RE; THE MARRIAGE OF

HlJ W'

Petitioner

JANE DE
Respondent

qs D lasl
MOTTON r.OR SUMMARY JUpGMENT

NO\il COMES
attomey, Lt

rhe Respondent

herein, -!

ANE m6

,,by and through her

and in support

^fDfr

CPfrll/,"tdWrsuant toand otherstatutorybasisrecited herein,

thereof, states as follows:

l-

A Judgment for Dissolution of Marriage (hereinafter rcferred to as JUDGMENT)

which incorporared a MARRIAGE SETTLEMENT AGREEMENT into the

JUDGMENT entered on January 10, 1996.

Z.

Prior to the entry ofrbe Judgmenr, an AGREED JOINT PARENTING AGREEMENT AND ORDER was enlered by the Court in July, l995.which was
incorporatcd into the Jutlgment entred on January 10, t 996.

3.

The two minor children, Petitioner and Respondent each resided in Cook County,

Illinois at the time that the JUDGMENT was entered.

4.

ThenamesandagesofrhetwominorchildrenareDANIEL
and

Uon

gltSftt

now t0yearsoldandA||DREWDO

|lrlnelr-p{

nowage 6 yearc

old.

5'

The Petitioner, on or about December 28, I 999, aoer three years

1

of co-parenting

53

the two minor children in accordance with the JLJDGMENT, withour nolice to the
Respondent and an Order of

courl illegally and in violation of statule, removed the

minor children from their peer groups, schools and lhe daily contact with the
Respondent, in Cook County, Illinois and commenced a permanent residency for

himself and the children in San Anlonio, Texas, where he now resides..

6.

The Preamble ro the Joint Parenting Agreement and order drafled by rhe

Petitioner's attorney, and accordingly, based upon contractual construction is

construed as his work product, recites as follows:

I.

Preamble

As porents, we wish to secure lhe maximam involvemenl and cooperation of both of ourselvesconcerningthephysicalrmentel,moral,andemotionalwell-beingofourchildren. This involvemenl and cooperation, hre agree, is in the best interests of out children. ll/e wish to share in decisions; ond by thk agreement produce sn undcrstanding ofour rights and responsibilities concerning lhe personal care of our children. In so doing, we wkh to continue to develop in the minds of our children thefeeling of comfort, securig,love, warmth, and olfeclion thot arises in. our children's realizalion that both ofus, as their parenls, are pafiicipating in their upbringing. lle wish to giv,e our children the clear message that theJ, are loved end wsnted by eaci oyu{ *at thqr can love us and be with us, that they hove a sense of importance in our fomily now reconstituled in two hoaseholds. We want our children to have the knowledge that we wil! use joinlly care for them and thal our children will have physical access to both of our best efforls to us, All of thcsefoctors we consider to bc imporlml lo the developmcnt of their se$-esteem and to fulfill theb potentiol as ,hEt grow to adulrhood Wc wish to maximize the inwlvement of each of us in all. aspects ollhe growth and development of oar children. From the care, upbringing, and nunaring of our children, the boruling b*eeen each of us and our children will grow. In formulating our voluntary agreemenl herein, it is our intention to be flaiblc in arriving at resolations to serve the developmental needs ofour children and to cchieye thc purposes we hovc

stoted

7. The JPA rccites "Theporent hoving day to daypossession cav mslrc lecisions of a moment effeaing the chlldren. Substantial decisions of a longcr tcttn conseqxences inclading but nol timited to education, religion, cultural snd srtktic training and general welfare will be resolved by the consensus of the percnls. Howeter, if lhe partics are unable lo reach consensus regording any ofthe aforementioned issucs father shail heve theJinal decision,'JPA Par. 3

8.

This cause of action is being filed in conformiry with 28 USC Sec.

l7j8A.

56

9.

Illinois

has sole

jurisdiction over the subject matter and rhe

Partieq JOI+rr/

b1d

.'a JAUE DA{

'.,andrherwo

minor chitdren,. DANIEL AND ANDREW'DO..

10.
iadgmenl

750 ILCS 5/609 states in part:

Sec- 609. Leave to Remove Chiklren. (a) The court ma!.granl leave, before or after to ony perty hoving custody of any minor child or childien to remove such child or children from lllinois whenever such opproval is in the best interests ofsuch child_or children. The burden ofproving thot such removal is in the best interests ofsach ihild or children is on the party seeking the removsl (b) Before a minor child is temporarily rcmovedfrom lllinois, the porent responsiblefor the removal shall inform lhe other patent, or the other porentts attorney, of theiddress ind lelephone numbcr where the child may be rcached daring the peiod of temporary removol, and the date on which the chill shall return to lllinois. The Statc of l0inois retains jarisdiaion when the minor child is absent from rhc Stste pursuanl lo this subsection.

l.

Case law cites certain criteria wHch tbe Petitioner must meet to seek (not approvg post faeto, rernoval), lo wit:

ThelllinoisSupreme Court identiliedfivefaclorslorthe courrto considerin determining a proposed removal is in the b*t interests of the child sought to be removed. Thefactors ro be considered ore (1) the likelihood lha! the move *ill enhonce the general qaality of ldc for both lhe custodialparentandthe child; Q) the motivet ofthccustodialparent in seehing thi move to determine whelher the removol is macly a rase intended lo defeat orfrustrste visitation; (3) lhe motives of thc noncustodial prrcnt in resisting the removal; (1) the visitation ights of the noncastodisl parent; and (5) whaher a rcalislic and reasonable visitotion schedule csn bc reoched if thc move is aUowed- In re Branham. 24E IIL Apo. 3d EgE. I!7 IIL Dec. 596. 61 7 N.E.2II
whelher

l1I7 H DisL

1993|.

l2-

Pelitioner has caused to b filed a pleading entitled:

.PETITION FOR COI.TRTAPPROVAL OFREMOVAL OF MINOR CHILDREN;" in

essence, asking

this Corut lo violate 750 ILCS 5/609, and

to "approve" a post facto act

oftbe Petitioner, without legal authority.

l3'

Paragraph 2 of the Petitioncr's pleading acknowledges that the Petirioner to

*failed

petition

this

Conrtfor removal of thc childran.o

JI

14.

summary judgment is appropriate when there are no genuine issues of materiat fact and the moving party is entitted to judgment as a matrer of law. purtill vHess. I I

I lll. 2d 229- 24O. 489 N.E.2d 862. 95 il.

Dec,305 (19861.

15.

There is no genuine issue of the material fact that the petilioner removed rhe two

'minor children from Illinois without an order of court granting the relief of
"removal".

16'

Petitioner admits in a verified pleading that he remoyed himself and the two minor children from Illinois to permanently reside in tbe State ofTexas without

filing any pleading pursuant to applicable statute.

17.

Iltinois is a fact pleading State,

Illinois is a fact pleading state- This means that although pleadings are ,o be liberalty
conslrued andformal or technical allegalions sre nol necessary, a comploint must, nevertheless,

contain facts to stqle a couse of action. Tru-Linh Fence Co. v. Eeuben H. Donnellsy eoryr-. 104

Ill. Apo. 3d 745.

6O

IIL Dec.

289. 132 N.E.2d I IEE

(l

Dist I9E2t.

19.

$ ?35 ILCS 5f2-1005 nrakes provision for. Summary Judgments

Slatute text:
Sec. 2-100L Summary judgmmts. (a) For plointitfr, Any tiwc afier the opposire parer has appeared or afier thc time within which he or she is required to appear hos apired, a plaintill moy move wilh or wilhout sxppoaing alftdevits for a summary judgment in his or her lavor for all or ony part of the reliclsought

(b) For defendanL

defendont ms!, at eny time, move with

or wirhont supporting

afJidavits for a summory judgment in his or her fovor os to all or any part of the relief sought agalnst him or her. (c) Proccdara The opposilc paQt may priorto or o, the time of the heaing on the motion Jile counlerouidtvtts. Thc Jadgmcnt sough, shall be rcndered withotrt delay if the pleadings, depositions, and sdmissions on tile, ,ogether with the allidaviq if any, show that there is no genuine lssae as to any mol*tal facl and thol the moving party is entirlcd to a judgment as a matter of law. A summaryjudgment, interlocutory in choracler, moy he rendered on the issue of Iiability alone althongh there is a genaine issue as to the amouil of lamages. (d) Summary determinstion ol major issues- If the cortrt determines that there is no

58

Senuine issae of mot*iol fact as to one ot more of thc major issua5 in the case, but ,hat substontiol controvers!, exists wilh respect to other major issucs, or if a pargr moves for o summary determination of one or more, bnt less thon all, of the major issaes in the oid lh" "or", coufitindsthat thaeisnogenuineissue of moterialfacl asrothat issueotthose issues, the conrr shall lhereupon drowan orderspecifyingthemojorissue orissaesthat appearwilhoutsubfrantial conlroverql, and direcling suchfurtherproceedings upon the remaining undetermined issues as oreiust. Upon the tial of lhe ease, lhefacts so specilied shall be deemed established, and the rrial shall be conducted occordingly. (e) Form ofolfidavits' Theform ond contents ofand proceilure relotingto affdovits ander this SeAion shall be as provided by rule. $ Alfidavits made in badfaith. If it appears to lhe salisfoction of the court at any time that ony afJidavil presenled pursuant to this Section is presented in bodfoith or solelyfor the purpose of delay, the court shall without delay order the party employing it to pay to the other party the amount of the reosonable expenses which thertfng of the allilIavit caused him or her to incur, including reasonable aflornqt'sfees, ond uy olfendingpqrty orattornqt moybe adjudged guilty of conlempt. (g) Amendment of pleading. Before or after the entry olo summary judgment, the court
shall permit pleadings to be amended upon jusl ond reasonable terms.
20. There is no dispuie as to

the applicarion of

the law applicable to removal, to

acr of

wit:?50 ILCS 5/609, nor the statutory requironent that the

be

removal cannot

"condoned" by

litigant fiting a pleading seeking the Court's approval for rhe

violation of said stalute, as a condition subsequent to the action of "removal".

21.

There is no dispute as

lo
a

the material fact that no cause of action exists, as a

matterof law, to approve

violation of thestatutory requiremenls which must be

mel in order for a parent to seek and obtain an order of removal from this jurisdiction.
22.

There is no dispute as lo lhe matcrial fact that Petilioner removcd the two minor

children from lllinois for perm-"nt residency in Texas wilhour compliance wil

750ILCS 5/6{8.

WIIEREFORE, Movanl .L l,/D

Lrr l-'

CPOth! ,prays

rhar

this tlonorable Courr granr the

59

following relief:

A.
fact that the Petitioner, D0(.

That this court grant nmrnaryiudgrncnt upon rhe staternent of material

JW/

N/

, removed rhe trvo minor children are DANIEL

-.,w*

'Vf

6fi1

.no t'o", l0 years otd and

AIDREW

ut gllz@afi

now

ase

i6

years old from

Illinois for permanent residency in Texas without any Order of Courr allowing said
a

"removal" and without liling

pleading seeking removal pursuant to 750 ILCS 516O9,in viotation

of the provisions of the Parenting AgreemenVOrder and statute.

B-

For such oiher and further relief

as is deemed eguitable

in rhe premises.

Rcspeeltully Sgbpiuedf BY: ---...------.-.-----.---_.-:

LrNDA Cffitlili**t

As atlorney for Re4bndent

laila

Lrohr

Attornev for Resnondent

CHICAGO,ILLINOTS

lzz4'Natn'lreel 60640

-n3-gL{L-ssq{

60