Cross Examination of a Party in
a Relocation Case
By Joy M. Feinberg
The key to any cross examination is PREPARATION. A good cross
examination is to the point, direct, and swift. Questions should be honed to key
into a point by point attack on the witness. There are four areas of attack on a
cross examination:
- Attacking the character or credibility of the witness;
- Attacking the credentials of the witness;
- Attacking the truthfulness of the witness; and
- Attacking the theory posited by the witness.
Once these four areas are examined, explored and mined
for their potential, the attorney can begin preparing the witness for the coming cross
examination or preparing to cross examine the witness. Preparation for cross
examination begins at the very beginning of the case - the initial interview. Here,
the attorney begins to explore the client's case, desires, interests, case attributes and
detriments. If there is a theme to the young lawyer's dilemma, it is failing to know
how to fully prepare for a case. Preparation begins with listening and ferreting out
all information possible. It is often helpful to give the client a "homework
assignment" - this being a history of all relevant issues. Then the attorney
must explore the relevant law and issues and prepare for what is to come.
What are the relevant issues in a relocation case?
This varies from state to state depending upon the relevant statutory provisions as well
as the case law in each jurisdiction. If your own state statute and case law is not
particularly enlightening, look to case law around the country.
Today, Illinois is arguably the most difficult state in
which one can try a relocation case. Let's look at some of it's relevant case law
for direction in our preparation. The leading Illinois case is In re: Marriage of
Eckert, 119 Ill.2d 316, 518 N.E.2d 1041, 116 Ill.Dec. 220, (1988). The Eckert court
made specific reference to the New Jersey case of D'Onofrio v. D'Onofrio, 144 N.J. Super.
200, 365 A.2d 27, (1976). This eloquent and informative decision should be studied
and is quoted at length as follows: Even under the best of circumstances and where the
custodial parent is supportive of a continuing relationship between the child and the
non-custodial parent, the nature of a parental relationship sustainable by way of
visitation is necessarily and inevitably of a different character than that which is
possible where the parents and children reside together as a single-family unit. The
fact remains that ordinarily the day-to-day routine of the children, especially young
ones, and the quality of their environment and their general style of life are that which
are provided by the custodial parent and which are, indeed, the custodial parent's
obligation to provide. The children, after the parents' divorce or separation,
belong to a different family unit than they did when the parents lived together. The
new family unit consists only of the children and the custodial parent, and what is
advantageous to that unit as a whole, to each of its members individually and to the way
they relate to each other and function together is obviously in the best interests of the
children. It is in the context of what is best for that family unit that the precise
nature and terms of visitation and changes in visitation by the non-custodial parent must
be considered.
Where, however, the custodial parent can demonstrate that
a real advantage to herself and the children will result from their removing their
residence to a place so geographically distant as to render weekly visitation impossible,
then the court must weigh a number of determinative factors in order to accommodate the
compelling interests of all of the family members. It should consider the
prospective advantages of the move in terms of its likely capacity for improving the
general quality of life for both the custodial parent and the children. It must
evaluate the integrity of the motives of the custodial parent in seeking the move in order
to determine whether the removal is inspired primarily by the desire to defeat or
frustrate visitation by the non-custodial parent, and whether the custodial parent is
likely to comply with substitute visitation orders when she is no longer subject to the
jurisdiction of the courts in this State. It must likewise take into account the
integrity of the non-custodial parent's motives in resisting the removal and consider the
extent to which, if at all, the opposition is intended to secure a financial advantage in
respect of continuing support obligations. Finally, the court must be satisfied that
there will be a realistic opportunity for visitation in lieu of the weekly pattern which
can provide an adequate basis for preserving and fostering the parent relationship with
the non-custodial parent if removal is allowed. The court should not insist that the
advantage of the move be sacrificed and the opportunity for a better and more comfortable
life style for the mother and children be forfeited solely to maintain
weekly visitation by the father where reasonable alternative visitation is available and
where the advantages of the move are substantial. It is at least arguable, and the
literature does not suggest otherwise, that the alternative of uninterrupted visits of a
week or more in duration several times a year, where the father is in constant and
exclusive parental contact with the children and has to plan and provide for them on a
daily basis, may well serve the paternal relationship better than the typical weekly visit
which involves little if any exercise of real paternal responsibility.
It is further clear that a non-custodial parent is
perfectly free to remove himself from this jurisdiction despite the continued residency
here of his children in order to seek opportunities for a better or different life style
for himself. And if he does choose to do so, the custodial parent could hardly hope
to restrain him from leaving this State Ont. he ground that his removal will either
deprive the children of the paternal relationship or depreciate its quality. The
custodial parent, who bears the essential burden and responsibility of the children, is
clearly entitled to the same option to seek a better life for herself and the children,
particularly where the exercise of that option appears to be truly advantageous to
their interests and provided that the parental interest can continue to be accommodated,
even if by a different visitation arrangement than theretofore. 144 N.J. Super at
202-203; 365 A.2d at 29-30.
Eckert, supra, sets forth the Illinois factors for
consideration in determining BEST INTEREST IN REMOVAL cases which is quote as follows:
Any and all relevant evidence, made on a
case by case basis;
The court should consider the proposed
move in terms of likelihood for ENHANCING the GENERAL QUALITY OF LIFE for both the
custodial parent and the children. (Gallagher v. Gallagher (1978), 60 Ill.App.3d 26,
31; D'Onofrio v. Gallagher (1978), 60 Ill.App.3d 26, 31; D'Onofrio v. D'Onofrio (1976),
144 N.J. Super. 200, 205-07; 365 A.2d 27, 30.)
The court should also consider the MOTIVES
of the CUSTODIAL PARENT in seeking the move to determine whether the removal is MERELY A
RUSE intended to DEFEAT or FRUSTRATE VISITATION. (See Winebright v. Winebright
(1987), 155 Ill.App.3d 722, 725; In re Custody of Arquliia (1980), 85 Ill.App.3d 1090,
1093).
Similarly, the court should consider
the MOTIVES of the NON-CUSTODIAL PARENT in RESISTING the removal. (D'Onofrio, 144
N.J. Super. at 206-07, 365 A.2d at 30).
It is also in the best interests of a
child to have a HEALTHY and CLOSE RELATIONSHIP with BOTH PARENTS, as well as OTHER FAMILY
MEMBERS.
VISITATION RIGHTS of the non-custodial
parent should be carefully considered. (In re Marriage of Brady (1983), 115
Ill.App.3d 521, 523: In re Marriage of Burgham (1980), 86 Ill.App.3d 341, 346).
Whether, in a given case, a REALISTIC and
REASONABLE VISITATION SCHEDULE can be reached if the move is allowed. In re Custody
of Anderson (1986), 145 Ill.App.3d 746; and
Whether finances will allow for frequent
visitation. The Eckert court continued by defining REASONABLE VISITATION as a
schedule that ...will preserve and foster the child's relationship with the
non-custodial parent. 518 N.E.2d at 1046; 116 Ill.Dec. at 225.
When removal to a distant jurisdiction
will substantially IMPAIR the non-custodial parent's involvement with the child, the trial
court should examine the POTENTIAL HARM to the child which may result from the move.
(e.g., In re Marriage of Bednar (1986), 146 Ill.App.3d 704, 711; In re Marriage of
Burgham (1980), 86 Ill.App.3d 341, 346).
The Eckert court made the following cautionary remarks:
| A. |
When a parent has assiduously exercised his or her
visitation rights, a court should be loath to interfere with it by permitting removal of
the children for frivolous or unpersuasive or inadequate reasons. [citations
omitted] |
| B. |
However, if the best interests of the child WOULD NOT BE
AFFECTED by a move to another State, the custodial parent should be FREE TO MOVE. |
| C. |
Thus, if the non-custodial parent objects to the removal
but HAS NOT EXERCISED his or her VISITATION RIGHTS, this fact should be considered
in determining whether to grant the custodial parent's desire to move. |
| D. |
The trial court's examination of a removal petition
should be guided by the policy of the IMDMA that the purpose of the Act is to secure
the maximum involvement and cooperation of both parents regarding the physical, mental,
moral and emotional well-being of the children during and after litigation. |
| E. |
If the custodial parent establishes a GOOD,
SINCERE reason for wanting to move to another jurisdiction, the trial court should
consider all the relevant factors in determining the best interest of the child. 518
N.E.2d at 1047, 116 Ill.Dec. at 226. |
In the Eckert decision, Ms. Eckert lost her bid for
removal because:
- She did not prove that her Arizona job would advance her
nursing career;
- She was not to receive significantly more money from the
new job;
- She had not attempted to find Illinois employment and she
ADMITTED to not really looking for Illinois work;
- There had been visitation disputes while she was in
Illinois;
- She failed to introduce evidence on how Arizona's climate
would help her son's asthmatic condition;
- Most of the child's extended family lived in the area of
his Illinois home including his three surviving grandparents;
- Mr. Eckert's exemplary parenting and exceptionally good
relationship with his seven-year-old son was persuasive in keeping the child here and the
fact that limited finances would prohibit extensive visits and the expert testimony
stating that the child would best be served by remaining in Illinois was difficult to
overcome when the other factors were so weakly presented.
- Eckert was reaffirmed by the Illinois Supreme Court case
of In Re Marriage of Smith, 172 Ill.2d 312, 665 N.E.2d 1290, 216 Ill.Dec. 652 (1996)
(Relocation denied due to detrimental effect on emotional health of an already troubled 11
year old girl even though mother's new husband's finances would allow her to stop
working.)
|
