In the recent case of In re Parentage of Rogan M., a custodial
parent sought to remove a child from Illinois over the objection
of the child’s other parent who “continued an active relationship”
with the child pursuant to a three year old settlement
which included “a basic parental arrangement.”1 In Rogan M.,
the First District of the Illinois Appellate Court held that
the requesting parent must only show that removal is in the
child’s best interests by a preponderance of the evidence, the
standard burden of proof in civil cases.2 Conversely, Illinois
Supreme Court Chief Justice Rita B. Garman has suggested
that a trial court’s judgment as to a child’s best interests may
involve “identifying and weighing the values at stake” rather
than “fact-finding” and thus require no burden of proof.3
However, the Rogan M. court reasoned that since the relevant
Illinois statute on such removals4 “does not set forth a quantum
of proof for removal petitions,”5 a preponderance of the
evidence was the required quantum under an Illinois Supreme
Court precedent where it was deemed applicable “absent a
statutorily assigned evidentiary standard.”6
While the court in Rogan M. recognized that the burden of
proof in a proceeding to modify a prior custody judgment
is “clear and convincing evidence,” it reasoned that this was
because of the explicit language in the relevant statute.7 It
concluded, again, that “a removal petition is not a petition to
modify custody.”8 The First District’s approach to burden of
proof in child removal cases has since been employed by the
But absent statutory authority, what is the default burden of
proof for removal issues, or for other legal issues in civil cases?
The Rogan M. court relied on an Illinois Supreme Court case
that, upon further analysis, did not apply a default rule. The
case of In re Enis involved the state’s petition to terminate
the parental rights of a mother and father whose six-year-old
child was then in foster care.10 The termination process was
significantly controlled by United States Supreme Court precedent holding that the due process clause of the fourteenth
amendment requires “at least clear and convincing evidence”
of permanent parental neglect.11 The trial court’s termination
of parental rights was reversed by the Illinois Supreme Court
ruling in Enis under United States Supreme Court precedent
because the trial court ruling was based on two findings of
parental physical abuse, as well as a finding that the parents“failed to correct the conditions causing the court” to make
the child “a ward of the court.”12 These findings on abuse were
each supported only by a preponderance of the evidence.13
Yet, in Enis, the court opined that a general rule defaulting
to a preponderance of the evidence standard was previously
established where a statute “did not specify whether the
applicable standard is preponderance of the evidence or clear
and convincing evidence.”14 Presumably this established,
but unused, default rule noted in the Enis case was found
applicable by the First District in child removal settings.
Yet, under United States Supreme Court precedent, does
an order like that in Rogan M.–allowing removal by a parent
of a child from Illinois to California–terminate the parental
rights of a second, fit and “active” parent who remains in
Illinois with long recognized and utilized childcare interests
that have just become very difficult, if not impossible, to
exercise? Lower Illinois appellate court decisions have suggested
otherwise, holding that custody remains with the nonmoving
parent though the visitation schedule and involvement in dayto-
day parenting would likely change.15 Further, beyond the
federal constitutional due process issues, are there other federal
(if not state) constitutional problems with such an order?
Additional potential problems seemingly include the practical
inequalities between effectively “childless” parents left
behind in Geneva, Illinois when their children move to Los
Angeles pursuant to a court order or without a court order to
Carbondale.16 For example, in In re Marriage of Means, the
court held that the primary physical custodian, pursuant to a
joint parenting agreement arising from a marriage dissolution,“may move anywhere in the State of Illinois without seeking
the permission of the court”.17 However, the Illinois Marriage
and Dissolution of Marriage Act provides that a court
order modifying visitation rights “shall not restrict a parent’s
visitation rights” unless cour t finds “visitation would
endanger seriously the child’s physical, mental, moral or
So while a court order allowing an intrastate move of a child
and the primary physical custodian is not always needed, the
other parent may claim that his/her “visitation rights” are so
altered by such an intrastate move that judicial review of the
move is warranted, perhaps with the burden on the primary
custodian to show serious health endangerment by a preponderance
of the evidence if there is no move. This would
promote the Illinois policy that “the welfare of the child usually
requires that the parent who does not have custody . . . be given
liberal visitation rights so the child will not be estranged from
For lawyers and judges uninterested in making every burden
of proof issue a constitutional one when the relevant statute
is itself silent on the necessary quantum, the default rule to a
preponderance of the evidence can be deemed nonabsolute.
Thus, General Assembly intent as to quantum can be inferred
from legislative intentions in very comparable settings. It seems
reasonable to infer that the General Assembly desires the same
burden of proof norm in certain parental removal/relocation
cases, that is, cases involving residential moves that effectively,
or very severely, limit the parent-child relationships of
nonmoving parents. Individual statutes have been and should
be interpreted, at times, by references to related statutes,
especially if very undesirable results will otherwise follow.
Thus in People v. Trainor, the Illinois Supreme Court found that
the “legislature intended” for the clear and convincing evidence
norm of the Sexually Violent Persons Act (the “Act”) to apply to
recovery proceedings under the Act.20 Of course, legislators can
always later choose to reject such judicial interpretations, assuming
some degree of legislative rationality and no infringement
of individual rights. But the default rule to a preponderance
of the evidence should not automatically apply when statutes
on burdens of proof are simply silent, even when there are no
constitutional demands as to certain proof quantums.
More boldly, lawyers and judges might question whether the
Illinois Supreme Court would fully support the First District’s
recognition of a rather absolute default to a preponderance
of the evidence rule on burden of proof issues when there is
no explicit statute. As noted, the First District cited but one
|Illinois Supreme Court ruling on the issue, which itself did
not employ a default rule. This high court case cited but one
Illinois Supreme Court ruling on defaults which also failed to
employ any such default rule because of federal constitutional
If statutory silence on the quantum of proof prompts no
constitutional mandate, and if no reasonable inferences
of General Assembly intent are decipherable, a rigid
preponderance default norm presents problems. Beyond due
process mandates, assessing the appropriate burden of proof
requires a balancing of “the private interests affected by
the proceeding,” the “risk of error” created by the use of the
preponderance norm, and the governmental interest supporting
the use of a preponderance of the evidence. These
assessments are also employed in federal constitutional
procedural due process analysis, including explorations of
burden of proof norms.22 Sometimes the balancing indicates
that more than a preponderance of evidence should be
required, as when civil case resolutions require findings on
quasi-criminal or criminal acts, or findings that will necessarily
intrude significantly upon personal privacy interests. Upon
such balancing, lawyers and judges have a variety of burden
of proof standards from which to choose, including more than
a preponderance of the evidence and clear and convincing
evidence. For example, sometimes in civil cases courts employ
a “clear preponderance” standard, or a beyond a reasonable
A higher quantum than a preponderance of the evidence can
be justified in a case like Rogan M. if the grant of a removal
petition to one parent effectively ends a strong and loving
parent-child relationship with the other parent which is then
centered in Illinois. While parental interests are, of course,
constitutionally protected, Illinois courts have long supported
a child’s interest in “a normal family home,” “in a loving, stable and safe home environment,” and in his or her own well-being”;
courts have recognized that, at times, a child’s interests do not
always align with a parent’s interests.24
The absence of an explicit statutory guidance on a burden of
proof should not necessarily prompt use of the preponderance
norm in and outside of family law cases. Constitutional
mandates on procedural due process have prompted higher
standards. As well, an implicit General Assembly choice of a
higher burden of proof in one setting has been gleaned from
a legislative choice on the burden of proof in a related setting.
Finally, Illinois judges should be able to employ a test involving
a nonconstitutional balancing of competing interests that
could lead them to forge a burden of proof going beyond
preponderance where statues are silent, subject, of course, to
some General Assembly oversight.
1. In re Parentage of Rogan M., 2014 IL App (1st) 141214, ¶3; 19 N.E.3d 140 [hereinafter Rogan M.].
2. Rogan M., at ¶5, 19 N.E.3d at 141.
3. In re D.T., 212 Ill. 2d 347, 371-72, 818 N.E.2d 1214, 1230-31 (2004) (Garman, C.J., dissenting).
4. Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101 et seq., §609(a) (2010) (2015, repealed by Pub. Act 99-90, effective Jan. 1, 2016).
5. Rogan M., at ¶6, 19 N.E.3d at 141.
6. In re Enis, 121 Ill. 2d 124, 131-2, 520 N.E.2d 362, 365-66 (1988) [hereinafter Enis].
7. Rogan M. at ¶6, 19 N.E.3d at 141.
8. Id. at ¶8, 19 N.E.3d at 141-42, (citing In re Marriage of Bednar, 146 Ill. App. 3d 704, 496 N.E.2d 1149 (1st Dist. 1986) and In re Marriage of Mueller, 76 Ill. App. 3d 860, 395 N.E.2d 677 (5th Dist. 1979) (in each case, the two year wait on seeking modification of a child custody judgment was found inapplicable to a visitation or a child removal petition since neither involved an issue of custody).
9. In re Marriage of Tedrick, 2015 IL App (4th) 140773, ¶49, 25 N.E.3d 1233, 1240 (citing Rogan M., at ¶5, 19 N.E.3d at 141) (petitioner seeking to move child from Illinois to South Carolina).
10. Enis, 121 Ill.2d at 125-26, 520 N.E.2d at 363.
11. Santosky v. Kramer, 455 U.S. 745, 747-8 (1982) (striking down a New York statute permitting termination of parental rights upon a finding of permanent neglect by “a fair preponderance of the evidence”).
12. Enis, 121 Ill. 2d at 127 and 133-34, 520 N.E.2d at 364 and 366-67.
14. Id. at 131-32, 520 N.E.2d at 366 (citing In re Urbasek, 38 Ill. 2d 535, 543, 232 N.E.2d 716 (1967); In re Simmons, 127 Ill. App. 3d 943, 948, 469 N.E.2d 215 (5th Dist. 1984); In re Nitz, 76 Ill. App. 3d 15, 20, 394 N.E.2d 887 (3d Dist. 1979).
15. In re Marriage of Bednar, 146 Ill. App. 3d 704, 712, 496 N.E.2d 1149, 1155 (1st Dist. 1986).
16. Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101 et seq., §600(g) (2015, repealed by Pub. Act 99-90, effective Jan. 1, 2016).
17. 329 Ill. App. 3d 392, 397, 771 N.E.2d 501, 505 (4th Dist. 2002).
18. 750 ILCS 5/607(c) (2015; repealed by Pub. Act 99-90, effective Jan. 1, 2016).
19. McManus v. McManus, 38 Ill. App. 3d 645, 646, 348 N.E.2d 508, 508 (5th Dist. 1976).
20. 196 Ill. 2d 318, 337-38, 752 N.E.2d 1055, 1066-67 (2001).
21. Enis, 121 Ill. 2d at 132, 520 N.E.2d at 365-66 (citing Urbasek, 38 Ill. 2d at 543, 232 N.E.2d at 720).
22. See, e.g., In re D.T., 212 Ill. 2d at 362-63, 818 N.E.2d at 1225-26 (employing Mathews v.Eldridge, 424 U.S. 319, 335 (1976)) to explore the burden of proof for a child’s best interest finding in a termination of parental rights proceeding).
23. Urbasek, 38 Ill. 2d at 543, 232 N.E.2d at 720 (clear preponderance standard for prosecuting violations of municipal ordinances and beyond a reasonable doubt standard for prosecuting acts of juvenile delinquency that would be crimes if committed by adults).
24. See, e.g., In re D.T., 212 Ill. 2d at 363, 818 N.E.2d at 1226.
Professor Emeritus Jeffrey Parness teaches at the
NIU College of Law, where he teaches a variety of
civil procedure courses as well as administrative
law. His primary areas of scholarship include federal
and state civil procedure laws, maternity and
paternity laws, the legal status of the unborn,
state constitutional equality laws, crime victim
restitution, witness abuse in civil litigation, and judicial rulemaking. Professor Parness received his B.A. from Colby College and his J.D. from The University of Chicago.