MT VERNON — A 7-year-old girl will remain primarily in the care of her St. Louis-area mother and not in that of her U.S. Virgin Islands father, a split state appeals court recently ruled.
In its 38-page decision and order in the accelerated appeal filed on Feb. 25, the majority of an Illinois Fifth District Appellate Court three-judge panel affirmed a lower court's decision about allocation of parenting time and found the lower court had not abused its discretion.
"Ultimately, the trial court is presumed to know the law and apply it properly," the decision said. "However, when the record contains strong affirmative evidence to the contrary, that presumption is rebutted. Therefore, unless we have a record affirmatively showing the circuit court improperly applied the law, we must presume it knew and applied it properly. Thus, here, we find the circuit court did not place an unwarranted burden on the [the child's father] and disadvantage him during its consideration of the best interests factors."
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Appellate court Justice James R. Moore wrote the decision in which Justice Judy Cates concurred and Justice John B. Barberis dissented.
The parental time and primary care dispute is between Mario Austin-Verweij and Kristina Fillback over their daughter, identified in court documents as "T.A.V," who will be 8 in September.
Austin-Verweij and Fillback have never married, according to the background portion of the decision.
In July, a St. Clair County Circuit Court judge entered a "final judgment" about parental time and denied Austin-Verweij's request to be designated as T.A.V.'s primary caretaker and relocate T.A.V. to his home in the U.S. Virgin Islands, according to the decision.
The circuit court, among other things, denied Austin-Verweij's requests and granted Fillback most of the parental time. The circuit court also ruled that T.A.V.'s primary residence would be Fillback's home "in the Greater St. Louis Metropolitan area" where T.A.V. also will continue to attend school.
Austin-Verweij appealed in August, saying the circuit court's order was in error and asking that it be reversed and remanded.
Among other things, Austin-Verweij claimed the circuit court held his employment, which meant he had to leave T.A.V. in the care of others while he worked, against him when considering his request to become primary caretaker.
"We disagree," the appeals court's decision said. "The circuit court did not fault [Austin-Verweij] for his employment, but properly considered the reality of the amount of time the respondent would have to care for the child and compared it to that of [Fillback]. The court stated specifically, 'while this court understands and acknowledges [Austin-Verweij] has to work, just as [Fillback] does, the simple fact is [Fillback] has the time available while [Austin-Verweij] does not."
In his dissent, Barberis said the circuit court's decision "was against the manifest weight of the evidence" and that the lower court took Fillback's best interests into consideration, 'not T.A.V., which should have been of paramount concern to the court in rendering its decision,"
"As such, I believe the parties should be granted equal parenting time, and Mario’s motion for relocation should be granted," Barberis' dissent continued.
Austin-Verweij and Fillback "appear to be loving, concerned parents" but that "best interest factors" presented in the case "weighed more heavily" in Austin-Verweij's favor, Barberis' dissent said.
"Mario is a father who desperately desires to be actively involved in T.A.V.'s life," Barberis said in his dissent. "In fact, his testimony showed that he adequately demonstrated commitment to T.A.V., despite Kristina's argument and the circuit court's determination that Mario had failed, unlike Kristina, to place T.A.V.'s needs above his own."