The latest child relocation case – comes out of Lake County, Illinois, and it denied Nuriana Levites the right to relocate her daughter to California.
It seemed clear from the evidence before the court that Dmitry was abusive to Nuriana. Other evidence suggested that Dmitry had even conspired with another man, Marozau, to injure his wife. On May 23, 2017, the trial court entered a mutual no-contact order, which precluded both parties from engaging in harassing conduct, committing physical abuse, interfering with the other’s personal liberty, or stalking each other. The order also set a parenting schedule, with their child’s primary residence with Nuriana and Dmitry having parenting time on two weekday evenings and one overnight on the weekend. The parents were to do the exchanges of their child at a neighbor’s house.
On Memorial Day, May 29, 2017, at about 5:20 a.m., a man named Marozau entered the marital residence and beat Nuriana, ultimately dragging her out of the house and down the driveway. Neighbors observed the abuse and the police were called. The neighbor went outside and him. By the time Marozau had dragged Nuriana to the end of the driveway, police arrived and restrained and arrested Marozau.
Nuriana testified that she had been severely beaten, she had bruises all over her body, and hair had been ripped from her head. Nuriana filed an emergency petition seeking to suspend her husband’s visitation and to require supervised visitation once his parenting time resumed. Evidence was presented at trial that Dmitry knew Marozau and that after Marozau was arrested, it was Dmitry that posted his bond.
Both parties had complaints about the other. Dimitry complained about Nuriana’s behavior regarding their child. Dimitry informed the court that Nuriana frequently canceled his parenting time, claiming that the child was ill. Makeup time for the missed visits was generally ordered, and Dimitry testified that he did not believe that he had missed any parenting time. At trial, the testimony was unrefuted that Dimitry consistently exercised his visitation.
Mother Seeks Relocation to California
Nuriana eventually sought relocation to California, citing her concern for her and her child’s safety, although she did admit at trial that she did not believe her husband would hurt their child. Nuriana testified that she would live with her sister in Beverly Hills and that she had leads on three jobs, but she had no written offers or even any details to present. According to Nuriana, her primary employment lead was working for a law firm that catered to the Russian expatriate community in Los Angeles. However, throughout the proceedings, Nuriana requested an interpreter, maintaining that her English language skills were not up to the task of testifying and understanding the proceedings.
Nuriana testified that the schools in the area in California had received high marks, according to websites she had visited. The guardian for the child disputed that Nuriana had investigated the schools. The guardian stated that he had researched them and found them to be of adequate quality, and he testified and reported that Nuriana had not looked into them. In his report, Lewinthal noted that he had researched the elementary school that Nuriana planned for her child to attend and that it was a good school with above-average scores.
Psychologist Report Recommendation on Allocation of Parental Responsibilities
On June 13, 2019, Dr. Frances Pacheco, a psychologist, filed her report advising the trial court on the allocation of parental responsibilities pursuant to the trial court’s order. The court’s June 27, 2018, order empowered Pacheco to interview the parties and the child, and to provide the court with input regarding the child’s best interests and regarding a parenting schedule. Pacheco recommended that Nuriana be allowed to relocate to California and that Dmitry’s parenting time be supervised while in California. Pacheco remarked in her report that when the child was with Dimtry, his then-wife, Anat, was the child’s primary caretaker and that Dimtry had commented to Pacheco that, if Nuriana were allocated anything other than supervised visitation with their child, then he would withdraw his contact with the child out of fear that Nuriana would continue to make allegations of abuse. Pacheco also remarked that she doubted that either parent “had the willingness and ability to encourage and facilitate a positive relationship between the child and the other parent.”
Guardian Ad Litem Did Not Object to Request to Relocate
The guardian for the child testified that he had no objection to Nuriana’s request to relocate, because Dmitry had said during a personal interview that, if Nuriana received unsupervised parenting time, he might withdraw his contact with the child. Dmitry denied making the statement. On direct examination, Dmitry clarified the context of the remark, made to both Lewinthal and Pacheco. He explained that he feared that Nuriana would continue to make unfounded allegations of physical and sexual abuse and that his child would be psychologically torn up by the investigations. Dmitry explained that, to spare him and the child the pain of the allegations and investigations, he might feel compelled to withdraw altogether from his child’s life if Nuriana received unsupervised parenting time.
Trial Court Denied Child Relocation Without Prejudice
After the trial, the court denied Nuriana’s amended petition for relocation without prejudice, and Nuriana appealed. In the court’s ruling, the court first defined the evidence it had considered: the evidence from the hearing, Pacheco’s report, and Lewinthal’s reports and testimony. Next the court defined the relevant legal rules it applied in its analysis: the statutory factors and the case law discussing the application of the factors. It noted that it was particularly sensitive to the issue of a custodial parent who is seeking relocation and has been interposing roadblocks, “however slight,” in the relationship between the child and the noncustodial parent.
The trial court discussed the facts it found to be “extremely disturbing.” The first issue was Marozau’s May 29, 2017, attack and attempted kidnapping of Nuriana. The court labeled as “important to the Court’s ruling and to this case” the fact that Dmitry provided the money to post Marozau’s bond. Regarding Dmitry’s in-court testimony and statements to Lewinthal that “he knew nothing about the attack, that he was fearful of [Marozau], and [that] he virtually had no or limited knowledge of [Marozau],” the court found them to be “absolutely incredible.” The court was also troubled that Dmitry posted bond for Marozau “so that [Marozau] could be on the street and Nuriana could be terrorized by the action that this individual was still at large.” While the court concluded that Dmitry had approved of Marozau’s attack on Nuriana, it expressly declined to find that Dmitry had directed the attack to proceed or he knew in advance that the attack would occur.
The court also found fault with Nuriana. The court found that she had attempted to interfere with Dmitry’s relationship with his child, citing the allegations of sexual abuse against Dmitry. The Department of Children and Family Services had “investigated those complaints, police departments ha[d] investigated those complaints and found no basis for them whatsoever.” The court highlighted an August 12, 2019, medical report in which their child was diagnosed with vaginal inflammation, but it noted that there was no follow-up, there was no call to DCFS, and there was nothing to support Nuriana assertion that Dmitry had molested the child.
Both Parents Found to Interfere with the Other’s Parent-Child Relationship
The court also found Dmitry at fault for interfering with Nuriana’s relationship with their daughter. Nuriana testified that when their daughter came back from parenting time with her father, she would sing, “Mom is bad” and “mom is a bitch.” The court determined Dmitry’s denial to be incredible.
The court chastised both parties for attempting to use the child and the court system to use the law enforcement authorities to garner an advantage in their case. In the case-law portion of the court’s remarks, the trial court stated that “[t]he only basis that [it] could find to support Nuriana’s request for relocation is her physical safety.” After distinguishing a case, the court stated:
“I do not in any way mean to minimize what happened here, but it is the only instance, that’s one instance, it’s a very serious instance, and thank goodness the neighbors were alerted because I don’t know what [Marozau] would have done if he was successful in getting Nuriana to his car. I know that he had her out of the house, that she sustained injury, she was treated at the hospital, he just didn’t get her in the car before the police thankfully arrived. That one instance weighs heavy on this court, but I cannot say that that alone is a basis for granting this petition for relocation. Rather, I’m concerned by the conduct of Nuriana that once I grant relocation to the state of California, she will seek to have the California authorities investigate her claims of sexual abuse of the child which I have already found lack credibility.”
The court then noted that it was to consider any and all relevant evidence in reaching its decision and that the factors from In re Marriage of Eckert, 119 Ill. 2d 316 (1988), were not exclusive. No single factor controlled and weight should be given to each of the factors.
“One single factor that favors relocation is the violence. And if there were enough—if the petition and the evidence had shown that there were other good reasons to relocate to California, i.e., schools, i.e., economic opportunity, i.e., that Nuriana was moving because somebody she had entered into a relationship with was relocating, those are cases where in many of those cases relocation ha[d] still been denied.” The court discussed In re Marriage of Demaret, 2012 IL App (1st) 111916, and In re Parentage of P.D., 2017 IL App (2d) 170355, in which relocation was denied even though the mother would have garnered a huge salary increase if she had been allowed to relocate.
“In this case, I don’t have that she even has a job. There was an allegation that she was going to be employed as a paralegal in a law firm. Throughout these proceedings now going on three years[,] [Nuriana] has at all contested hearings utilized a court interpreter, which suggests she has very limited use of the English language, so what job she was going to get—she never produced a job offer sheet, a letter from a potential employer, or anything that indicated how she was going to support herself and the child. She did testify that she had the assistance of her sister, but the sister never testified. There was testimony that there was a two-bedroom apartment that was available, which meant the child necessarily would be sharing *** a room in the apartment, a bedroom with her mother.
The type of planning and specificity that I see in cases where relocation has been allowed was totally lacking in this case. I’m not sure how [Nuriana] was going to be able to support herself and the child. I had no particulars on the school. The child is now of school age. And I also have, if you will, the advantage of looking at two years of a normal parenting schedule. Initially, there were orders in this case that prohibited Dmitry from seeing the child. There was an order of protection sought that named the child as a protected party; that was later amended. But throughout a period of two years, there were no violations to the order of protection, Dmitry committed no act of violence towards Nuriana, and he is regularly seeing the child, he regularly has overnights with the child. Therefore, it was my conclusion that if I were to allow relocation, I would be essentially terminating Dmitry’s parental rights. The idea that Dmitry and Nuriana could have some sort of cooperative relationship in traveling from one coast to Chicago is pure folly. Both parties have been guilty of doing everything to undermine the other that they possibly could. So the Court could not find that Nuriana would cooperate with seeing that the parent-child relationship would continue. And again, I was able to at least look at over the last two years the child has been with her father on a regular basis, has seen her father, and I would be putting the child in a situation where I don’t know that she would ever see her father again.”
Appellate Court Review of Trial Court Findings
On review in the Appellate Court, the court looked at the trial court’s findings. The Appellate Court noted that the trial court did not hear from anyone in California that Nuriana said that she was going to live with, nor did Nuriana have a job lined up in California. Further, it doubted that her job prospects would be very good and especially doubted her claim that she had a lead on a paralegal job, because Nuriana consistently used a language interpreter in all important hearings, which suggested that her English language skills were marginal and might hamper her ability to find English-language-intensive positions, like that of a paralegal at a law firm. The trial court noted that Nuriana had not investigated the schools in California (and this was confirmed by the child’s guardian, Lewinthal). Nuriana and the child would have to share a bedroom in the proposed living arrangements, and Nuriana had demonstrated no means by which she could support herself.
The court discussed that Dmitry had fully and consistently exercised his parental time throughout the case, and it noted that Nuriana had frequently attempted to limit and interfere with his parenting time. In that regard, the court again highlighted Nuriana’s baseless reports of abuse and her videotaping of visitation exchanges, and it juxtaposed this against Nuriana’s admission during her testimony that she did not believe that Dmitry posed a danger to their daughter or would harm the child.
The trial court considered whether each party could foster a good relationship between the child and the other parent. The court concluded that, based on the manifest rancor between the parties, there was simply no way the parties could be expected to do this. Indeed, the court found that each party was responsible for undercutting the other, from the derogatory songs that the child would sing after spending time with dad (Mom is bad, Mom is a bitch) to Nuriana’s unfounded reports of Dmitry abusing their daughter. The Appellate Court found that there was ample evidence in the record supporting the trial court’s conclusion to deny the relocation.
The trial court also considered the effect the proposed relocation would have on parenting time. It noted that Nuriana had no means of support lined up in California and that the parties’ economic resources, in general, were not abundant. Specifically, the court noted that Nuriana would lack the economic ability to participate in the cost of the travel that would be required and would lack the inclination to do so even if she had the resources. Again, there was evidence in the record to support the trial court’s conclusion.
The court also considered whether Nuriana wanted to relocate to preserve a committed relationship, and it concluded that the proposed relocation was solely to physically distance herself from Dmitry. While the court termed this factor “compelling,” the court noted that it was due to the previous physical harm caused by a third party and that it did not change the court’s calculus overall, regarding the factors under consideration.
Illinois Appellate Court Affirms Judgment to Deny Child Relocation
The Appellate court did not believe that a manifest injustice would occur as a result of the trial court’s decision. The court emphasized the speculative nature of Nuriana’s request to relocate. There was no particularly detailed level of planning. She did not have a job offer in hand, although she attempted to explain that by noting the uncertainty of the timing of the move. Nevertheless, she did not present a job offer or objective evidence from any potential employers. Likewise, Nuriana did not research the educational opportunities for her child, leaving that to Lewinthal to do on her behalf. While both Lewinthal and Pacheco opined that relocation should be allowed, their opinions were based on statements Dmitry made that he explained to the court’s satisfaction as misunderstandings. Specifically, Dmitry explained that he felt that, if relocation occurred, he would have to withdraw his contact because of Nuriana’s history of making accusations of abuse. The court accepted this explanation, and it noted that, during the hearing, Nuriana expressly conceded that she did not believe that Dmitry would harm their child. Accordingly, the Appellate court affirmed the trial court’s judgment to deny the relocation.