In 2019, the Illinois Supreme Court weighed in on the issue of relocation in In re Marriage of Fatkin.[1] Fatkin involved a 2015 award of primary physical placement with the father of the parties’ two children. The mother had parenting time six out of fourteen days. She also had after school parenting time on the father’s weekday parenting time during the school year.[2] In 2017, the father sought relocation to Virginia Beach, Virginia. The mother objected and the father petitioned for relocation. The trial court conducted a three-day hearing. Trial included an in-camera interview with the parties’ 12-year-old son. The daughter was six years old at the time of the relocation trial.
The evidence regarding the father’s employment opportunities suggested somewhat better opportunities for the father in Virginia. The mother was a non-tenured professor teaching at Knox College in Illinois. The son testified that he wished to move to Virginia. The also testified that he had overhead his mother discussing plans to potentially move out of state with her significant other. The trial court made exhaustive findings. The trial court applied the twelve statutory factors to the facts of the case and granted the relocation. It awarded the mother parenting time for the summer and the father during the school year. The mother appealed. The appellate court reversed the trial court’s decision. The Supreme Court sided with the trial court and concluded and commended the trial court’s handling of the case. The Court stated:
Each of the trial court’s numerous findings is supported by evidence from the record, and we are in no position to second-guess its credibility determinations relative to Danielle’s plans to relocate. [Citation omitted.] Moreover, the trial court did not paint a naïve and rosy portrait of relocation, nor did it simply ignore the evidence militating against it. The trial court conceded that there were certain evidentiary gaps in the record, and it expressly acknowledged that relocation has the potential to significantly reshape Danielle’s existing relationship with her children and most especially with her daughter. In the end, however, and only after stating that “[r]emoval cases are difficult” because “[n]o matter the outcome, one party’s life will be affected detrimentally,” the trial court ultimately concluded that relocation would be in the children’s best interest. This was a perfectly reasonable conclusion based on the record before us, and we see no reason to dispense with what we have consistently characterized as a “strong and compelling” presumption in favor of the result reached by the trial court in such cases.
This case stands for the proposition that the trial court can best weigh the evidence. The appellate court should not put itself in the trial court’s position in assessing what lawyers call the “manifest weight of the evidence.”
In fact, the 2024-25 update of Gitlin on Divorce: A Guide to Illinois Family Law, contains and updates my spreadsheet of all Illinois removal/relocation cases. I write in the book summarizing my survey of all the caselaw. As paraphrased to update it with the decisions in Scott v. Haritos, 2022 IL App (1st) 220074 (Sept. 30, 2022) and In re Marriage of Kenney, 2023 IL App (1st) 221558 (July 25, 2023):
The author next reviewed the post-Collingbourne caselaw, to survey its impact. We have 27 post-Collingbourne decisions with—following appeal—16 ultimately allowing relocation and 11 denying relocation. On the other hand, we now see far fewer reversals of cases that initially allowed relocation.121 Of the post-Collingbourne cases that ultimately allowed relocation, less than half were reversals. Yet if we ignore the post-Collingbourne Fourth and Fifth District cases, only two cases from the other districts that ultimately allowed relocation resulted from reversals.122
Post-relocation statute, all nine published appellate court decisions affirmed the trial court! Accordingly, we see a continued trend of providing great deference to the trial court’s decision,123 something emphasized by several appellate court decisions (including the recent 2022 and 2023 decisions). Accordingly, we included a column in the spreadsheet addressing the deference given to the trial court’s decision focusing on the Supreme Court decisions in Eckert, Smith, Collingbourne, and Fatkin. In each case, the Court referred to the “strong and compelling” nature of the presumption–language omitted from any of the appellate court decisions involving reversals.124
[1] In re Marriage of Fatkin, 2019 IL 123602.
[2] In re Marriage of Fatkin, 2018 IL App (3d) 170779, ¶ 4.
121That singleton case was a Third District decision involving a young child where the father’s parenting time would be halved with the proposed schedule, Shinall v. Carter. 2012 IL App (3d) 110302.
122Post-Collingbourne, we had three cases from the Fourth District. All had been reversals of an initial decision not allowing removal. Yet these reversals all pre-dated the 2016 Rewrite. Furhter note that the results from unpublished decisions skews our survey because many of the unpublished cases not surveyed affirmed the trial court’s decision—whether in favor or against relocation.
123Parentage of P.D., 2017 IL App (2d) 170355 (affirming denial of relocation); In re Marriage of Kavchak, 2018 IL App (2d) 170853 (affirming relocation); Williams v. Williams, 2018 IL App (5th) 170228 (affirming relocation); In re Marriage of Fatkin, 2019 IL 123602 (affirming relocation); In re Marriage of Prusak, 2020 IL App (3d) 190688 (affirming denial); In re Marriage of Kimberly R, 2021 IL App (1st) 201405 (also affirming denial); In re Marriage of Levites, 2021 IL App (2d) 200552 (affirming denial); and Scott v. Haritos, 2022 IL App (1st) 220074 (affirming relocation).
124In re Marriage of Eckert, 119 Ill. 2d 316, 330 (1988); In re Marriage of Smith, 172 Ill. 2d 312, 321 (1996); In re Marriage of Collingbourne, 204 Ill. 2d 498, 500 (2003); and In re Fatkin, 2019 IL 123602, ¶ 32.
