Illinois Child Relocation and the Trend Against Relocating Out-of-State
A recent Illinois child relocation case out of the Third District Appellate Court sets a trend for not allowing a parent to relocate to another state from Illinois. If you are considering a Petition to Relocate (or want to contest it), a reading of the following four cases is a must. While it is important to note that each of these cases is factually different, each one provides useful guidance. Even in the reading of the following cases, however, you’ll see that the different district courts in Illinois will still come up with different results, making the outcome of child relocation cases uncertain.
Four Illinois Relocation Cases You Need to Know
This article will review the four most recent cases, In re the Parentage of P.D., In re Marriage of Stimson, In re Marriage of Davchak, and the most recent case, In re Marriage of Fatkin.
In re Parentage of P.D.
In October of 2017, the 2nd District decided In re Parentage of P.D., 2017 IL App (2nd) 170355. Following an April 2017 hearing, the trial court denied respondent Joan Dufelmeier’s request to relocate to New Jersey with her and petitioner John Alley’s minor child. Joan appealed, and the Appellate Court affirmed the trial court’s ruling.
In the Marriage of Stimson
In March of 2018, the Stimson case came down from the Appellate Court in the Fourth District. In the Marriage of Stimson, 2018 IL App (4th) 170731-U. That case involved a mother moving her children to North Carolina without asking the Court’s permission. The trial court denied her relocation petition and awarded the father the majority of the custodial rights. The Appellate Court affirmed the trial court’s ruling.
In the Marriage of Kavchak
In March of 2018, the 2nd District decided the case the other way, and allowed the mother, Alicia Kavchak, to relocate the parties’ minor daughter to North Carolina. In re Marriage of Kavchak, 2018 IL App (2d) 170853-U.
In the Marriage of Fatkin
On April 25, 2018, the 3rd District ruled that the mother could move, but the Appellate Court reversed the trial court’s ruling. In re Marriage of Fatkin, 2018 IL App (3d) 170779.
As a result of the dissolution of their marriage, the parties, Danielle Fatkin and Todd Fatkin, were awarded joint custody of their two minor children. Todd subsequently filed a post-dissolution petition for leave to relocate with the minors out of the State of Illinois. The trial court granted the post-dissolution petition for relocation, and Danielle appealed. The Appellate Court reversed and remanded for further proceedings.
Parent’s Relocation Statute: 750 ILCS 5 Section 609.2
Illinois child relocation cases are decided using the statute, 750 ILCS 5/609.2:
The court shall modify the parenting plan or allocation judgment in accordance with the child’s best interests. The court shall consider the following factors:
(1) the circumstances and reasons for the intended relocation;
(2) the reasons, if any, why a parent is objecting to the intended relocation;
(3) the history and quality of each parent’s relationship with the child and specifically whether a parent has substantially failed or refused to exercise the parental responsibilities allocated to him or her under the parenting plan or allocation judgment;
(4) the educational opportunities for the child at the existing location and at the proposed new location;
(5) the presence or absence of extended family at the existing location and at the proposed new location;
(6) the anticipated impact of the relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation;
(9) possible arrangements for the exercise of parental responsibilities appropriate to the parents’ resources and circumstances and the developmental level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a parent’s relocation; and
(11) any other relevant factors bearing on the child’s best interests.
In every relocation case, the best interests of a child must be determined on the facts of each case, and every case is going to have a set of different facts. The citation to and discussion of prior removal cases is of little value to the Appellate court in determining whether removal should be allowed because of this reason. All you can do is become familiar with the cases and try and learn what was important to each court and to modify your behavior in such a way that it increases your odds to relocate (or to defend it).
In the following analysis, I’m not suggesting that any one factor weighed more heavily on the court than another, but it is interesting to put each case side by side to determine how some of the same issues are addressed by the courts. I’m going to address only two issues, the non-custodial parent’s involvement with the children and the custodial parent’s facilitation with parenting time, as it relates to these four cases. In my opinion, addressing these two issues are critical in a relocation case.
Non-Custodial Parent’s Involvement
One factor that seems to resonate throughout these types of family law cases though is the non-custodial parent’s (although we don’t have custody anymore in Illinois, this is the easiest way to describe this parent for the article’s purposes) involvement. For those parents that aren’t involved very much, it seems as if the court has an easier time allowing the relocation.
In the most recent court ruling, Fatkin, the non-custodial parent was the mother. Danielle objected to the relocation and the testimony borne out showed that Danielle was very active in her children’s lives. At the end of their divorce, they’d agreed and entered into a Joint Parenting Agreement for their son (born in 2004) and a daughter (born in 2010). Danielle was given overnight parenting time of 6 out of every 14 days (every Monday and Tuesday night and every other Saturday and Sunday night), plus time after school on Wednesdays, Thursdays, and Fridays until Todd got off of work. The parties were to alternate one-week periods of parenting time during summer break.
Danielle lived within two miles of Todd’s residence in a home that she had purchased. She was employed as a tenure-track professor of history and worked during the academic year from 8:30 a.m. until 2:30 p.m. She was under contract until 2020 with her current employer, and she did not intend to leave the area. Danielle regularly exercised her parenting time. She had been the soccer coach for both children (for the parties’ son for one season and the parties’ daughter for one season), volunteered in their classrooms, had been the room mother for the children’s classes, and was the group leader for the parties’ daughter’s 4-H club group. Danielle was primarily responsible for scheduling the children’s medical appointments, although Todd also involved. Danielle volunteered weekly in the classroom of the parties’ daughter, attended parent-teacher conferences, and kept in regular contact with the children’s teachers. She also provided enrichment activities related to archaeology to share her expertise in her field of work at the children’s school. Danielle and her children enjoyed doing many activities together, such as baking, running, biking, hiking, camping, taking road trips, reading, and horseback riding.
For the 2016-17 school year, Danielle had seen the children every day after school until spring 2017 when Todd told the parties’ 12-year-old son that he was allowed to go directly home after school on Wednesdays, Thursdays, and Fridays because his son wanted to go home instead of going with Danielle.
The Appellate Court found that both Todd and Danielle had exercised their respective parental responsibilities and parenting time, and neither of them had substantially failed or refused to exercise their allotted parental responsibilities under the allocation of parental responsibilities judgment. The court found that Danielle has been heavily involved in her children’s activities and schooling. The trial court ruled that the children could move, and given the distance and the long gaps between her parenting time, Danielle’s influence and involvement in parental decision making during the school year would greatly be diminished or nonexistent under the relocation order. On appeal, however, the Appellate Court reversed.
In re Parentage of P.D., the evidence showed that P.D. and his father had a close relationship. While Joan was the custodial parent and had served as the primary caretaker, Jack has always sought to be involved, and he has always sought additional time with P.D. and currently fully utilizes his parenting time.
P.D’s mother, Joan, acknowledged that the move to New Jersey would diminish Jack’s frequent contact with P.D. but argued that the schedules proposed by the GAL and Joan would allow Jack a similar amount of time with P.D. Jack testified about things he would not be able to do with P.D. if he lived in New Jersey, including “living in a suitable nearby household” and discovering “if he had changed his favorite color from green to red or back to green again.” In short, he would not “be able to have any normal visibility whatsoever” in P.D.’s life if either proposed schedule were approved. The trial court observed that the parenting time Jack currently enjoyed was aligned with his work schedule and maximized the amount of parenting time he had when he was not working. The court concluded that the quality of Jack’s current parenting time would not be met by the schedule proposed by the GAL or by Joan.
The Appellate Court addressed other factors for affirming the trial court’s denial of Joan’s relocation petition, but the factor of Jack’s involvement was addressed in some detail.
In Stimson, there were other factors that weighed more heavily on the court then the non-custodial parent’s involvement with his children. The reviewing court did affirm the trial court’s ruling to deny the mother’s relocation petition, but it was likely due to other factors. The non-custodian Andrew, did succeed in keeping Jamie from relocating, and eventually was awarded primary care of control of his youngest child, but the court’s main focus was not on his involvement.
In Kavchak, although the father was very involved in his child’s life, that one factor was not enough to keep the court from allowing the mother to move to North Carolina with their child.
The allocation judgment divided the parties’ parenting-time based on a two-week schedule. During the first week, petitioner’s parenting time begins on Wednesday at 5 p.m. and continues through Sunday at 5 p.m. During the second week, petitioner’s parenting time begins on Wednesday at 5 p.m. and continues overnight through Friday at 5 p.m. The allocation judgment further provided that each party have three non-consecutive weeks of parenting time with S.K. during the summer when she is out of school, alternate parenting time on major holidays and S.K.’s birthday, and share equally in spring and winter breaks.
Greg Kavchak described his relationship with his daughter as “very strong.” He stated that he is an “active father” and a “day-to-day dad.” Grey testified that he cared for S.K. on a daily basis for the first six years of her life. He likes to do homework with his daughter, go to her extracurricular activities, and watch her grow. He also described his week-to-week parenting time with her, and testified that he has parenting time from Wednesday at 5:00 p.m. until Friday at 5:00 p.m. one week and Wednesday from 5:00 p.m. until Sunday at 5:00 p.m. the following week. In addition, since March 2017, when his ex-wife Alicia moved out of the marital home, he has had telephonic contact with his daughter through FaceTime about once a day.
Greg explained that when Alicia moved out of the marital home in March 2017, he changed his work schedule to “take advantage of [his] parenting time [and] to keep the quality of care that [he has] been giving [S.K.] since she was born.” To this end, Grey altered his work schedule to ensure that he is off work on Wednesdays at 4:30 p.m. so he can be home by 5 p.m. when Alicia drops off S.K. In addition, on Thursday and Friday mornings, he starts work at 8:30 a.m. so that he can spend the mornings with S.K. before school and walk her to the school bus. Paula Kavchak, Greg’s mother, resides in Chicago and is able to stay with S.K. on Thursday afternoons until he arrives home at 5:30 p.m. On Friday afternoons, he leaves work by 3:00 p.m. so that he can be available for S.K. when she gets home from school.
Greg described his daughter’s extracurricular activities and testified that she takes swimming lessons and violin lessons. The swimming lessons occur once per week, on Fridays at 5 p.m. and Greg transports her to each lesson and stays for the entire time. He also attends her swimming lessons. Their daughter has been taking violin lessons since October 2016. Violin lessons occur once a week and take place at Alicia’s apartment. Alicia has not invited Greg to attend the lessons because they occur at a time when he is normally at work. Greg, however, has attended her violin recital.
Greg testified that since entry of the judgment of dissolution, he has exercised all of the parenting time allocated to him. He further testified that other than when his mother watches S.K. after school on Thursday afternoons, he has never left S.K. with a babysitter during his parenting time.
The court found that Greg acknowledged that he made various requests to modify his work schedule since S.K. was born and his employer always accommodated his requests. The Court found that the scheduled parenting time ordered for Greg would allow him to remain involved in her life. The Court went on to describe other statutory factors, but it is interesting that this very involved father did not succeed in keeping the relocation petition from being granted.
If the Custodial Parent can Facilitate a Relationship between the Children and the Non-Custodial Parent
This factor can fit into a couple of areas that the Court needs to consider under the statute. Basically, if the custodial parent cannot get along with the non-custodial parent, or stands in the way of the relationship between the non-custodial parent and the children while that parent resides in Illinois, how will that parent act once there is a relocation? The more problems with parenting time here in Illinois, the less likely the moving parent will success in a relocation case.
In In re Parentage of P.D., in a preliminary report, the GAL recommended that the petition be denied stating his concern that allowing Joan (custodial parent) to move to California would “permit her to continue treating Jack (Non-custodian) as an outsider despite the fact that he is P.D.’s father.” He was also concerned that Joan had not made a reasonable “good faith effort” to establish a schedule of parenting time for the father. The trial court expressed its concern that the relocation would adversely affect Jack’s ability to fulfil his parental responsibilities, given the historically poor communication between the parties. Joan indicated that she and her new husband had the financial resources to contribute to P.D.’s travel costs, and they “might pay for some of [Jack’s transportation],” but also testified that the travel burden should be on Jack: “Jack is a grown adult. He can come to visit his son if it’s important enough to him.”
The tenth factor is “minimization of the impairment to a parent-child relationship caused by a parent’s relocation.” In its examination of the GAL, the trial court recited the GAL’s comment in his “Preliminary Oral Report”:
“Of concern to me is the fact that as long as I have been involved in this matter Joan has shown absolutely no patience for Jack’s involvement with the child nor has she, in my opinion, made even the slightest effort to try and open lines of communication or to treat either Jack or his family as the parents [sic] or grandparents of P.D. I do not believe that this necessarily means that Joan has an improper motive in wanting to move, but my larger concern is that if she is allowed to move, is her behavior going to continue in such a distant jurisdiction to the point where she will attempt to cut Jack out of [P.D.’s] life?”
In the GAL’s report, he also acknowledged that his report and testimony about multiple references to Joan’s attitude toward Jack, including; “I do wish at times from my observation that [Joan] showed [Jack] more respect as a father,” and Joan “basically treats Jack as something of an intrusion upon the family dynamic that she would prefer recommending that the petition be allowed, the GAL stated “I remain concerned, as I have during my entire involvement in this matter, with the attitude of Joan. If she does not show a willingness to facilitate the relationship between Jack and [P.D.,] [c]ourt [o]rders will need to enter rectifying the situation.” The trial court concluded that because Joan “does not show a willingness to facilitate a positive relationship between father and son,” the tenth factor “strongly favors denial.”
In In re Marriage of Kavchak, there was no finding that the mother was keeping the father from the children, or that she intervened at all in the relationship. Her petition to relocate was granted.
In In re the Marriage of Stimson, that mother moved her children to North Carolina without leave of court. This mother alleged sexual abuse by the father toward the children that was unfounded. An expert in the case, Dr. Appleton, determined the mother not only failed to facilitate the relationship between the father and the children but also may have taken steps to interfere with it. The mother was ordered to bring the children back to Illinois.
Lastly, in In re the Marriage of Fatkin, the court heard evidence that the father told his son that he didn’t have to go to the mother’s house after school and that he could go home by himself instead. The trial court had allowed the dad to move with the kids, but the Appellate court reversed the ruling. The Appellate Court didn’t make any finding of facilitation, however, and seemed primarily moved by the mother’s influence with the kids and her involvement.
Child Relocation Cases Are Complex
In conclusion, relocation cases are difficult. The judges have a lot of factors to weigh, and the combination of the multiple factors are never the same in each case. That makes prevailing in this type of case difficult. However, it can never hurt to facilitate a relationship between your kids and the other parent. It doesn’t matter if you are the custodial parent or the non-custodial parent. The facilitation helps almost any aspect of your case before the court, and there is no downside. It is a win/win for the parents, and surely for the kids.
The question is, “Can you love your kids more than you hate the other parent?” If you can, then show it. Facilitate a relationship. Lastly, be involved in your children’s lives. Do things with them. Teach them. Play with them, but do the hard work too. Go to teacher-parent conferences. Take the kids to the dentist. Believe me, you’ll be glad you did.
If you’re facing The complexities of child relocation and custody laws require sound legal input and advice. Contact Anderson & Boback today if want to learn more a petition for relation or Illinois child relocation law.