NO. 4-01-0936 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

ROCHELLE HARBOUR,

	Plaintiff-Appellee,

	v.

ROGER G. MELTON,

	Defendant-Appellant.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Macoupin County

No. 00F32

Honorable

Diane L. Brunton,

Judge Presiding.

_________________________________________________________________

	PRESIDING JUSTICE McCULLOUGH delivered the opinion of the

court:

	RespondentDefendant Roger G. Melton (Roger) appeals from an order

of the circuit court of Macoupin County finding him in contempt for

removing his minor child, Nicholas Gifford (born June 26, 1999),

from Illinois without prior approval of the court or the child's

mother, petitionerplaintiff Rochelle Harbour (Rochelle).  As a sanction,

Roger was directed to pay Rochelle's attorney fees.  Temporary

custody of Nicholas was awarded to Rochelle until Roger filed a

petition for leave to remove and approval was granted by the court

or until Rochelle granted Roger written permission to remove the

child from the Sstate.  The issues on appeal are whether (1) the

trial court erred in applying section 609 of the Illinois Marriage

and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/609

(West 2000)) when the underlying proceeding was brought pursuant to

the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1

through 27 (West 2000)) and (2) the transfer of temporary custody

was an improper sanction.  We reverse.

	The Illinois Department of Public Aid (Department)

initiated the parentage action by filing a complaint on May 15,

2000.  On the stipulation of Roger and Rochelle, on June 6, 2000,

the trial court entered an order finding Roger to be the natural

father of Nicholas and awarding Roger custody subject to "reason

able rights of visitation in" Rochelle.  The Department was

thereafter dismissed as a party.

	On June 19, 2000, Rochelle filed a motion to vacate the

order on the ground that she believed she had stipulated only to

temporary custody until she returned from South Carolina.  On the

same date, she filed a petition for custody and a petition for rule

to show cause.  On July 20, 2000, Roger filed a motion to strike

the pleadings because a motion to modify was the proper pleading

under the Marriage Act.  In addition, on July 31, 2000, Roger filed

an alternative motion for temporary and permanent custody.

	Following a hearing on August 10, 2000, the trial court

entered an order on August 17, 2000, vacating the previous order of

custody, denying the motion to vacate as to paternity, denying the

motion to strike the pleadings, awarding Roger temporary custody,

and specifically setting the visitation of Rochelle during the

temporary custodial period.  On June 4, 2001, the cause came before

the trial court for hearing on the issues of custody and visita

tion, and the parties advised the trial court that they had reached

an agreement.  On June 7, 2001, the trial court entered an agreed

order (1) granting Roger custody of Nicholas; (2) giving Rochelle

visitation from 6 p.m. Friday through 6 p.m. Sunday on alternate weekends, as well as alternate holidays, with the parties directed

to equally divide the Christmas holiday and with Rochelle also

having visitation on the child's birthday and on the Wednesday of

every week from 5 p.m. to 8 p.m.; (3) directing that the order was

to be reviewed at the option of Rochelle in the event Roger became

separated from his current wife; and (4) expressly reserving all

other matters pertaining to the minor child.

	On July 16, 2001, Rochelle filed a petition for a rule

requiring Roger to show cause why he should not be held in contempt

of court because he changed his residence to 468 East Spencer,

Cuba, Missouri, took the child with him, did not request leave of

court or the consent of Rochelle, and thereby adversely affected

Rochelle's right to visitation.  At the hearing conducted August

13, 2001, Rochelle testified that, at the time the custodial order

was entered, Roger lived in Litchfield with his wife and mother. 

Roger moved out of Illinois in late June or early July 2001.  He

now lived with the child, his wife, his mother, his grandmother,

and a friend of his mother.  Roger told her that he moved to

Missouri because he and his wife were having problems.  Rochelle

went to Missouri and stayed with Roger for a month beginning June

29, 2001.  She decided against staying in Missouri and getting back

together with Roger, and she left Missouri about the end of July

2001.  She denied giving Roger permission to take the child to

Missouri.  The petition for rule to show cause was filed about one

week after she returned from Missouri.

	Roger testified that he, the child, his mother, his grandmother, and his mother's friend, Eva, lived at the residence

on East Spencer in Cuba, Missouri.  He moved because he and his

wife were having marital problems and he had a better job offer. 

Prior to the move to Missouri, he had separated from his wife.  The

job offer was as a mechanic for "Out-Of-The-Way Auto."  He

contacted Rochelle, and she offered to go to Missouri with him. 

Roger felt it might be good for the child to have both parents

together.  Rochelle stayed for about one month.  Roger's wife moved

into the home in Missouri about one week prior to the hearing. 

Roger had not filed a petition to dissolve his marriage or talked

to an attorney about that.  Rochelle told him she went to Missouri

because she wanted to leave her home in Gillespie, Illinois, she

did not like Illinois, and she was having problems at home. 

Rochelle told him that her mother used crack.  When Rochelle left

Missouri, she told him she was going to visit her mother for a

couple of days.  Her mother came to Missouri to pick her up.  

	Eva Moore testified that she lived in the same household

with Roger.  Rochelle told her that she wanted to get away from her

family because her stepfather fondled her and she was sexually

molested by her stepbrother, as was her younger brother.

	Rochelle returned to testify that she lived with her

mother, her stepfather, and her sister.  She denied telling anyone

that her stepfather fondled or molested her or that her mother did

drugs.  To her knowledge, her mother did not use drugs.  Rochelle

currently held two jobs.  She worked part-time, about 20 hours per

week, at Pizza Hut in Litchfield.  She also had a full-time job working midnights shifts at Wal-Mart.  She started working at Wal-

Mart three to four days prior to the hearing.  She would begin

working the day shift on the weekends at Pizza Hut during the week

following the hearing.  At Wal-Mart, she would work from 9 p.m. to

7 a.m., four days per week, alternating between weekdays for one

month and weekends for one month.  If she had custody of the child,

during the day he would be in day care and during the night her

sister or mother would baby-sit.  Roger had never objected to her

mother watching the child.  Her mother and her sister also worked. 

Her sister's hours varied.  Her mother's hours also varied, but

generally she worked during the day and was home in the evening.

	At the conclusion of the hearing, Rochelle's attorney

argued that, based on "the statute," Roger was not permitted to

remove the child from Illinois without the court's permission or

Rochelle's permission.  He did not argue that the court-ordered

visitation had been disrupted by the removal of the child to

Missouri.

	On August 21, 2001, the trial court entered an order (1)

finding Roger in contempt of court for removing the child from the

Sstate without permission of the court or Rochelle; (2) directing

Roger to pay Rochelle's attorney fees; (3) granting temporary

custody of Nicholas to Rochelle until such time as Roger filed a

petition to remove that was approved by the court or until Rochelle

granted Roger permission to remove the child from Illinois; and (4)

further providing that when Rochelle could not directly supervise

the child, she could place the child in the care and custody of her mother, Sharon Griffin, her sister Stephanie, or a licensed day-

care provider. Although the order did not specifically set out

Roger's rights to visitation, it stated "[n]othing in the paragraph

shall be construed to prohibit reasonable and liberal visitation on

the part of the respondentrespondentdefendant."

	On September 4, 2001, Roger filed a motion for rehearing

or to vacate the contempt order.  On September 20, 2001, the trial

court denied the motion.  In denying the motion, the trial court

explained that its primary concern was the best interests of the

child.  In deciding issues of custody and visitation, the court

considered the child's contacts with Illinois and with family

members in Illinois, and in determining whether to authorize

removal, the fact that visitation could be the same as before

removal was not controlling.

	A trial court's finding a party in indirect civil

contempt will not be overturned on appeal unless it is against the

manifest weight of the evidence.  Busey Bank v. Salyards, 304 Ill. App. 3d 214, 217, 711 N.E.2d 10, 14 (1999).  However, to the extent

this appeal raises an issue of statutory construction, that issue

will be considered de novo.  In re Marriage of Kates, 198 Ill. 2d 156, 163, 761 N.E.2d 153, 157 (2001).

	Section 14(a)(1) of the Parentage Act, in relevant part,

states, "In determining custody, joint custody, or visitation, the

court shall apply the relevant standards" of the Marriage Act.  750

ILCS 45/14(a)(1) (West 2000).  It also expressly states that a

judgment in an action under the Parentage Act may provide for the custody and guardianship of the child and visitation privileges

with the child "which the court shall determine in accordance with

the relevant factors" set forth in the Marriage Act and the

applicable laws of Illinois to guide the court's determination of

the child's best interests.  750 ILCS 45/14(a)(1) (West 2000).  

	Section 602(a) of the Marriage Act enumerates a set of

nonexclusive factors that the trial court is to consider in

determining custody in accordance with the best interests of the

child.  750 ILCS 5/602(a) (West 2000).  See In re Marriage of Martins, 269 Ill. App. 3d 380, 388-89, 645 N.E.2d 567, 573 (1995) (the statutory list of factors is not exclusive).  The possibility

of a custodial parent removing a child from the Sstate would be a

relevant factor to consider in determining custody.  However, the

original custodial order of the trial court, based on the agreement

of the parties, granted custody of Nicholas to Roger without

expressly providing for the possibility of removal and did not

expressly require Roger to request permission from the court or

from Rochelle to remove the child from Illinois.  Had the court's

order incorporated such a provision, the contempt powers of the

court could be used to enforce that judgment.  750 ILCS 45/15(b)

(West 2000).

	Section 609(a) of the Marriage Act authorizes the court

to grant leave to remove the child from Illinois on petition by the

custodial parent, who has the burden of proving that removal is in

the child's best interests.  750 ILCS 5/609(a) (West 2000). 

Although removal from the Sstate relates to custody and visitation and section 609 is included in part VI of the Marriage Act relating

to custody, reviewing courts that have considered the issue have

consistently determined that section 609 is not incorporated by

reference into the Parentage Act and does not apply to unmarried

parents.  In re S.L., 327 Ill. App. 3d 1035, 1037, 765 N.E.2d 82, 84 (2002); In re Adams, 324 Ill. App. 3d 177, 180, 754 N.E.2d 425, 428 (2001); In re Parentage of Melton, 314 Ill. App. 3d 476, 481, 732 N.E.2d 11, 15 (2000); In re Parentage of M.M.W., 296 Ill. App. 3d 877, 883, 695 N.E.2d 1357, 1361 (1998); In re Parentage of R.M.F., 275 Ill. App. 3d 43, 51-52, 655 N.E.2d 1137, 1143-44 (1995).  In Adams, the court concisely explained the rationale for this conclusion as follows:

	"Although the Parentage Act has adopted some

of the provisions of the Marriage Act, it does

not incorporate the entire Marriage Act and

does not confer the same broad powers on the

court.  See Melton, 314 Ill. App. 3d at 478, 732 N.E.2d at 13.  The court has no inherent

powers in parentage cases, and the court's

authority to hear parentage cases is limited

to the exercise of those powers that are

expressly given to it by the statute.  See In re Marriage of Cohn, 93 Ill. 2d 190, 443 N.E.2d 541 (1982).”  Adams, 324 Ill. App. 3d at  180, 754 N.E.2d at 428.

	The courts deciding each of these cases have recognized that the custodial parent does not have an absolute right to remove

the child from Illinois.  In R.M.F., the court found that the modified visitation schedule was reasonable and upheld the court's

authorization of the removal of the child even though section 609

did not require a petition to remove be filed.  R.M.F., 275 Ill. App. 3d at 52, 655 N.E.2d at 1144.  In M.M.W., the court recognized that a disruption of visitation caused by removal of the child

could be a basis for a petition for modification of custody under

section 16 of the Parentage Act (750 ILCS 45/16 (West 2000)), which

incorporated the factors of section 610 of the Marriage Act (750

ILCS 5/610 (West 2000)), or a petition to enforce visitation under

section 607.1 of the Marriage Act (750 ILCS 5/607.1 (West 2000)). 

M.M.W., 296 Ill. App. 3d at 883-85, 695 N.E.2d at 1361-62 (although the court did not explain precisely how section 607.1 of the

Marriage Act is incorporated into the Parentage Act).  In Melton, the court required the custodial parent to seek modification of

visitation prior to removing the child from the sState.  Melton, 314 Ill. App. 3d at 482, 732 N.E.2d at 16.  Adams also required the custodial parent to seek to modify visitations if she could not

comply with the court-ordered visitation after removal of the child

from the Sstate.  Adams, 324 Ill. App. 3d at 180, 754 N.E.2d at 428.  In S.L., the court found that a decision to remove the minor from Illinois to Florida demonstrated a change in circumstances

warranting the court to consider modifying custody.  S.L., 327 Ill. App. 3d at 1038-39, 765 N.E.2d at 85.

	As noted, the analysis in M.M.W. suggests that a disruption of visitation by removal is an enforceable violation of

the custodial order entered under the Parentage Act.  M.M.W., 296 Ill. App. 3d at 883-84, 695 N.E.2d at 1361.  In the case at bar,

although the petition for rule to show cause recited that visita

tion was adversely affected, no evidence of that was presented and

no argument was made that removal of the child disrupted visitation

in violation of the trial court's custody order.  That argument has

also not been made in this court.  We deem Rochelle has abandoned

that argument.

	Therefore, the finding of contempt is against the

manifest weight of the evidence because (1) the trial court's order

awarding Roger custody did not require that he seek permission of

the court or Rochelle before removing Nicholas from Illinois, (2)

section 609 of the Marriage Act does not apply to this case, and

(3) Rochelle has presented no evidence of a violation of the

visitation provisions of the trial court's order.  Without evidence

of a disruption of visitation, we cannot say that Roger's removal

of the child without first seeking modification of the court's

order constituted contempt of court.

	Rochelle argues that she is disadvantaged because section

610(a) of the Marriage Act (750 ILCS 5/610(a) (West 2000)) requires

that she wait two years to file a petition to modify custody.  Her

argument assumes that (1) the trial court did not retain jurisdic

tion of this question under the express reservation provision of

the August 17, 2000, agreed custody order, (2) the trial court will

consider the removal of a child to a distant location from one of his parents would not seriously endanger the child's mental or

emotional health, and (3) section 610(a) is incorporated into the

Parentage Act.  Section 16 of the Parentage Act states that

modification of custody or visitation "shall be in accordance with

the relevant factors specified" in the" Marriage Act.  750 ILCS

45/16 (West 2000).  Applying the narrow statutory construction

analysis previously utilized in these types of cases, the "factors"

are set out in section 610(b) of the Marriage Act (750 ILCS

5/610(b) (West 2000)).  Section 610(a), which contains a limitation

or condition precedent for instituting a modification proceeding

under the Marriage Act, may or may not apply to a modification

proceeding under the Parentage Act.  We do not decide that

question.

	Rochelle argues that the failure to recognize a require

ment for permission to remove under the Parentage Act is discrimi

natory toward illegitimate children.  This argument appears to be

a challenge to the constitutionality of the statutory structure on

the basis that it violates principles of equal protection under the

law.  U.S. Const. amend. XIV; Ill. Const. 1970, art. I, §2.  In

R.M.F., the court found that illegitimate children were not discriminated against because they are afforded the same procedural

rights as legitimate children even though there was a different

route traveled to access those rights.  R.M.F., 275 Ill. App. 3d at 51-52, 655 N.E.2d at 1144.

	As stated heretofore, there was no determination (1) of 

whether the trial court's order contained an express reservation of the question of removal; (2) that removal endangered the child's

mental or emotional health; (3) that section 610(a) was incorpo

rated into the Parentage Act; and (4) of the application of sections

16 of the Parentage Act and section s 610(a) and 610(b) of the

Marriage Act to the case at bar.  Moreover, the record and the

documents before us on file in the appellate court do not disclose that Rochelle served timely

notice on the Attorney General of an intent to raise an issue

concerning the constitutionality of a statute as required by

Supreme Court Rule 19 (134 Ill. 2d R. 19).  See Villareal v. Peebles, 299 Ill. App. 3d 556, 561, 701 N.E.2d 145, 148 (1998); Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d 540, 545, 646 N.E.2d 23, 26 (1995).

	Finally, Roger argues that a change of custody was not a

proper sanction for a visitation violation.  M.M.W., 296 Ill. App. 3d at 883, 695 N.E.2d at 1361; In re Marriage of Fox, 191 Ill. App. 3d 514, 522, 548 N.E.2d 71, 76 (1989).  Because we find that the

trial court improperly found Roger in contempt, we decline to

discuss the propriety of the sanction.

	The judgment of the circuit court of Macoupin County is

reversed.

	Reversed.

	KNECHT and APPLETON, JJ., concur.