Poverty and Child Custody

An interesting Appellate Court of Illinois decision, Cole v. Johnson (Ill. App. Ct. July 23, 2013) (some paragraph breaks rearranged); see, in particular, the last three paragraphs:

The petitioner is Cody Cole, and the respondent is Kathryn Anne Johnson. They live in Paris, Illinois, and have a two-year-old son, L.C. They were engaged to be married, but they broke off the engagement and ended their relationship, and now they live apart. Neither earns enough to support a household.

[Mother], who has custody of L.C., met an oilfield engineer from Albany, Texas, Steven Sutton, who is about her age and earns $130,000 a year. He can earn this kind of money only in the oilfields of Texas. As of the date of trial, he and [mother] were engaged to be married ….

Pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/609 (West 2010)), [mother] filed a petition to remove L.C. from Illinois to Texas, so that she and L.C. could live with her soon-to-be husband, in Albany. After hearing evidence, the trial court denied the petition, finding that the proposed removal would not be in L.C.’s best interest. [Mother] appeals.

The best-interest finding is against the manifest weight of the evidence, considering the extent to which the proposed removal would improve the quality of life for both [mother] and L.C. Therefore, we reverse the trial court’s judgment and remand this case with directions to (1) grant the petition for removal and (2) craft a reasonable and realistic visitation schedule based on L.C.’s residence in Texas….

[Father], who is 23 years old, lives with his mother, stepfather, brother, and sister in a house in Paris, Illinois….

[Father] has a high-school diploma and one year of community college. He would like to attend a culinary school in Missouri at some point in time. His aspires to open a restaurant of his own….

He works approximately 22 hours a week at Applebee’s in Terre Haute, Indiana, where he earns $8.50 an hour. He made $15,000 to $20,000 in 2012. His earnings are insufficient to support an independent household.

His previous jobs were at WalMart, Domino’s Pizza, and McDonalds….

[Father] does not think the proposed removal of L.C. to Texas would be in L.C.’s best interest, considering that (1) [mother] has no relatives in Texas, (2) [father] has no relatives in Texas, (3) [father] knows almost nothing about Sutton or his family, and (4) [father] could not “stay involved in [his] son’s life” with his son so far away….

[Mother], who is 21 years old, rents an apartment in Paris, Illinois, and L.C. lives with her. The apartment has two bedrooms, a small living room, and no yard, although a playground is nearby…. [Mother] is employed as a waitress, and she also earns small amounts of money painting pictures. She has worked in a restaurant in Charleston. As of the date of trial, she was employed at Cracker Barrel in Mattoon, more than an hour’s drive from her apartment in Paris. At Cracker Barrel, she works 7 to 10 hours a week and earns $8.59 an hour. Her total wages were $12,000 in 2011 and $7,000 in 2012.

She does not earn enough to support herself. Her monthly living expenses are $625. Her fiancé, Steven Sutton, helps support her because he wants her to be able to stay home with L.C. as much as possible. She and Sutton are concerned that, if she is unable to move out of Illinois, they both will have to work more hours to support two households: the household in Illinois and the household in Texas….

If L.C. and his mother were permitted to move to Texas, they would live with Sutton, in Albany. He lives in a 3–bedroom ranch house with 1 1/2 baths and a large fenced-in backyard. The house, which Sutton rents for $800 a month, has about three times the living space of [mother]’s apartment….

Steven Sutton is 24 years old, and he and [mother] became engaged on June 15, 2012…. He has a high-school diploma and two years of college courses in criminal justice. He left college to work for his current employer, Anderson Perforating…. Anderson Perforating does “wire line work in the oilfields,” and Sutton is a field engineer for that company. He earns $14.50 an hour and works approximately 100 to 120 hours during each 2-week pay period. In addition, he makes commissions in the amount of $3,000 to $8,000 per month. In 2011, his earnings were nearly $80,000. In 2012, they were nearly $130,000….

Sutton also has a family business with his father and brother, Sutton and Sons Septic and Construction. They install and clean septic systems, build houses, and remodel houses and commercial buildings. Sutton purchases equipment, services the debt, and oversees the financial and business aspect of the operation. Each month, the company brings in about $10,000 in profits, which Sutton puts back into the business….

Sutton has looked for comparable employment in Illinois. He has found that the oil fields of Illinois do not offer opportunities comparable to those in Texas….

The trial court wrote: “… [T]he court finds that the general quality of life for the custodial parent would be enhanced and there would be an indirect benefit to [L.C.] if [[mother]] marries her fiancé, Steven Sutton.” (Emphasis in original.) Nevertheless, “for [L.C.] to have a healthy and close relationship with both parents as well as other immediate family members, removal is not in [L.C.’s] best interests,” given that his “close maternal and paternal family members reside in Paris, Illinois.”

Also, the trial court did not think it would be reasonable and realistic to have L.C. undergo the visitation schedule that [mother] proposed. Albany was 938 miles from Paris. A round trip by automobile was 26 hours, and a round trip by airplane was 16 hours, including drive time to and from airports….

[T]he custodial parent has the burden of proving that removing the child from Illinois would be in the child’s best interest…. The manifest weight of the evidence goes against the conclusion that L.C.’s best interest is to remain in Paris, Illinois.

L.C. has two parents who are too poor to support him. His mother, a part-time waitress, receives child support in the amount of $67 bimonthly from his father, who, it appears, lives in a basement room of his mother’s and stepfather’s house.

We hasten to add that there is no correlation between money and human worth and that we do not intend the least denigration of either parent. Nevertheless, such economic hardship is not to be taken lightly. Poverty can be grim and corrosive, and social mobility in the United States is not what it used to be. We do not mean to subscribe to an iron-clad determinism, but the opportunities L.C. has during his childhood probably will determine the opportunities he has for the rest of his life.

Sutton is by all accounts a warm and decent person, and no matter what, he intends to marry [mother]. If he is allowed to pursue, unimpeded, his occupations in Texas, he will lift [mother] out of the ranks of the low-skilled and underpaid poor and into, approximately, the upper middle class — and, naturally, L.C. will be elevated with her….

Sutton can help [mother] and L.C., economically, only to the extent that he can work in Texas. The less he can work in Texas, the less he can help them in that respect. All in all, it strikes us as unfair to L.C. to jeopardize his good fortune by diminishing the means by which Sutton can help him materially. Realistically, how long will Sutton have a job with Anderson Perforating, or what is the likelihood that he will advance within that company, if he has to take a week off every two weeks in order to visit his spouse and stepson in Illinois? …