In re Marriage of Kenney , 2023 IL App (1st) 221558 ( 2023 )

2023 IL App (1st) 221558No. 1-22-1558
Opinion filed July 25, 2023
SECOND DIVISION
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
JOHN MATTHEW KENNEY JR., ) of Cook County.
)
Petitioner-Appellant, )
)
v. ) No. 2018 D 5945
)
JANET AMBER STRANG, )
)
The Honorable
Respondent-Appellee. )
Debra Walker,
Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
court, with opinion.
Justices Howse and Ellis concurred in the judgment and opinion.
OPINION
¶1 Following the filing of his petition for dissolution of marriage, petitioner-appellant John
Matthew Kenney Jr. (John) and respondent-appellee Janet Amber Strang (Amber) proceeded
through protracted litigation until the trial court entered its bifurcated judgment that is the
subject of the instant appeal. Of relevance here, the trial court granted Amber’s request to
relocate the parties’ minor children from Cook County, Illinois, to Colorado Springs,
No. 1-22-1558
Colorado. John appeals that determination, contending that the trial court erred in failing to
regard the case as a relocation matter pursuant to statute, erred as a matter of law when it
disregarded a prior legal finding, and ultimately erred in weighing the evidence presented. He
asks that we reverse the trial court’s decision granting Amber’s request and/or remand the
matter. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 As noted, the record herein is voluminous and the litigation between the parties was
intense. Some 10 witnesses testified at trial with respect to the children and the issues of
parental decision-making, allocation of parenting time, and relocation, including the parties,
court-appointed and retained professional witnesses, and various lay witnesses. We present
those facts pertinent to the court’s decision regarding relocation, as that is the only portion of
its decision at issue on appeal.
¶4 In April 2016, very shortly after they began dating, John and Amber discovered they
were pregnant with twins. They married on June 24, 2016, in Santa Barbara, California. At
the time, John, an attorney licensed in Illinois, was working in Chicago and owned property
on North Willard Street; his immediate family, including his parents, siblings, and their
children lived in the area. Meanwhile, Amber, a commercial real estate agent, was working
and living temporarily in Dallas, Texas, but also maintained a home in Colorado Springs,
Colorado which she had owned for at least a decade; her immediate family, including her
parents, siblings, and their children, lived in that area.
¶5 Essentially, the parties split their time between Illinois and Colorado during the
pregnancy and marriage. For example, they traveled regularly and very often to and from the
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areas (alone and together) until Amber could no longer travel medically. They then chose to
deliver the twins in Chicago at Northwestern Medical Center (Northwestern) due to its
excellent neonatal unit. Amber reserved day care and Montessori school spots for the twins
before they were born at facilities in Chicago. (However, they were never enrolled here.)
John and Amber also agreed to renovate John’s Willard Street property for the twins’ arrival;
they hired an interior designer with whom Amber and her mother met, and Amber signed a
lease for an apartment near that home where they could stay during the renovations.
¶6 The parties’ twins were born prematurely on December 16, 2016, at Northwestern. Due
to complications, they were admitted to the neonatal intensive care unit and were not released
from the hospital until the end of January 2017. The twins needed physical therapy and
follow-up care for a heart murmur and plagiocephaly, and they saw doctors in Chicago until
approximately March 2018. 1 However, as soon as they were cleared to travel in April 2017,
four months after their birth, Amber began traveling with them frequently and regularly
between Chicago and Colorado Springs, splitting time between the two cities, while John
typically stayed in Chicago to work. As the record demonstrates, these trips were consistent
and almost monthly, and they would spend two or more weeks in each location (sometimes
more, sometimes less). Accordingly, the twins consistently remained with Amber for a vast
majority of the time, and she was their primary caregiver. In addition, when she had to travel
for business, she often flew with the children to Colorado and left them in the care of her
parents, as opposed to leaving them with John in Chicago. While Amber applied for a gym
membership for her and the children in Chicago, she never obtained an Illinois driver’s
1
The twins continue to have some health problems related to their premature birth.
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license, never voted in Illinois, and never became affiliated with any church here; in fact, the
parties agreed to have the twins baptized in Colorado, which they did. The children also saw
health providers in both Chicago and Colorado during this time. With respect to tax returns,
in 2016, John and Amber first filed married but separately, with John using Chicago as his
residence and Amber using Colorado as hers; they later amended their federal return to file
married and jointly, using Chicago as their residence. In 2017, they filed a joint federal
return, this time using Colorado as their residence, and they each filed separate state returns,
with John filing an Illinois return and Amber filing a Colorado return. The parties also filed a
tax return for the twins, who received income from modeling, and that return listed Colorado
as their residence. Additionally, John applied to be admitted to practice law in Colorado and
completed the state’s licensure process. In May 2018, he drove Amber’s car and towed his
boat to Colorado, where he left it. And, the parties together applied for passports for the
twins, and both attested that the twins’ residence was Colorado.
¶7 On May 1, 2018, Amber and the twins went to Colorado. They did not return to Chicago.
¶8 On July 26, 2018, John filed a petition for dissolution of marriage in Illinois, as well as an
“Emergency Motion for the Return of the Minor Children to their Home State.” In his
emergency motion, he claimed the twins’ home state was Illinois, asserting they were born
here, received medical care here, and the parties resided here in the leased apartment. He
alleged he and Amber intended to move into the Willard Street property once construction
was completed, with Amber taking the children to Colorado in May for what was supposed
to be a temporary stay, but then refused to return to Chicago. Four days later, on July 31,
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2018, Amber filed a petition for dissolution of marriage in Colorado. 2 In August 2018,
Amber moved (among other things) to dismiss John’s petition for dissolution in Illinois for
lack of personal jurisdiction, alleging her residence throughout the marriage had always been
Colorado, and her contact with Illinois was limited to only birthing the children, leasing the
apartment to be close to the hospital due to the children’s medical needs upon birth, and
returning only for their necessary medical appointments from time to time.
¶9 On March 15, 2019, the trial court, following a hearing, denied Amber’s motion to
dismiss John’s petition for lack of personal jurisdiction, finding her claims that she was only
in Illinois for the birth of the children to be “without merit.” First, with respect to Amber
herself, the court, after examining the Illinois long-arm statute (735 ILCS 5/2-209 (West
2018)), concluded that it had jurisdiction over her as she had sufficient contacts with Illinois,
including signing the apartment lease, applying for day care before the twins were born, and
performing work here via her employment. With respect to the children, the court stated that
the question of whether it had jurisdiction over them “is much more involved.” The court
noted that section 201(a)(1) of the Uniform Child-Custody Jurisdiction and Enforcement Act
(UCCJEA) gives a state jurisdiction to make an initial custody determination only if it is the
“home state” of the children at the time of the commencement of the proceeding “or was
the[ir] home state *** within 6 months before the commencement of the proceeding and the
child is absent from this State but a parent *** continues to live in this State.” 750 ILCS
36/201(a)(1) (West 2018). It further noted that section 102(7) defines “home state” as the
2
The record indicates that, because Amber failed to mention John’s prior filing in Illinois in her
pleading, which is in contravention of Colorado law, her petition was not addressed on its merits by
that court.
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state in which a child lived with a parent “for at least six consecutive months immediately
before the commencement of a child-custody proceeding.” 750 ILCS 36/102(7) (West 2018).
Examining the evidence presented, the court commented that, in the case of these parties,
“[t]he reality is that the children did not live in either Illinois or Colorado continuously for [a]
six[-]month period immediately prior to the commencement of the action on July 26, 2018,”
and ultimately, “[t]here was no testimony adduced at trial indicating that the parties ever
agreed as to where they would live with the twins.” Because of this, the court turned to an
examination of whether the twins and Amber had some significant connection to Illinois to
qualify it as the twins’ home state, and it found that there was. It cited, for example, that
Amber continued to fly the twins to Chicago for medical appointments that their Chicago
pediatrician confirmed could have been conducted by other doctors elsewhere, Amber
brought them to a modeling casting call in Chicago, and she admitted she never told John she
had no intention of permanently residing in Illinois or that she was not going to return with
the children when she last left. The court concluded that, even though “[t]his is truly an issue
of the parties having a multistate relationship,” for the sake of the instant jurisdictional
question, the twins’ home state was Illinois.
¶ 10 Following this, Amber filed a “Petition to Relocate with Minor Children and Entry of a
Parenting Plan and/or Allocation Order.” In it, Amber averred that John was aware of her
desire to raise the twins in Colorado since April 2017 and that Colorado has been her
domicile for 12 years and her residence throughout the entire marriage. She further asserted
that the children have spent the majority of their lives in Colorado and it is the most suitable
environment in which to raise them for myriad reasons, including the home she owns there,
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her extended family, educational opportunities, and her professional licensure. Multiple
additional filings ensued between the parties, including a motion to dismiss Amber’s petition
to relocate, as well as petitions to enforce trial court orders and a petition and amended
petition for temporary allocation of parenting time filed by John. Amid all this, the trial court
appointed Pamela Kuzniar as guardian ad litem (GAL) for the twins and Dr. Alan Ravitz to
perform an evaluation 3 regarding relocation and allocation of parental responsibilities and
parenting time. Additionally, John filed his own motion for evaluation by a retained
professional pursuant to statute, and Dr. Louis Kraus was permitted to issue a report, as well.
Motion practice and hearings continued, and on September 9, 2020, while the trial court
denied an emergency motion filed by John for temporary allocation of sole decision-making
authority regarding preschool enrollment, it sua sponte ordered the parties to “exchange the
children at an agreed location every two weeks” and to maintain this schedule while litigation
proceeded. It also asked the parties to submit proposed allocation judgments regarding
parental responsibilities and parenting plans. John’s plan called for the children to remain in
Illinois and for joint decision-making and equal parenting time, with the assumption that
Amber would reside in Illinois. Amber’s plan proposed relocation of the children to
Colorado, final decision-making in some areas of their lives to be given solely to her, and a
parenting schedule with visitation for John. In the meantime, the parties each filed motions
seeking to enroll the twins in preschool in their respective states. The trial court entered an
3
The parties raised some concern in the trial court with respect to certain portions of Dr. Ravitz’s
report containing an outdated legal standard, and urged it not to consider these portions. The record
reflects that the trial court only considered Dr. Ravitz’s report for its findings of fact and final
evaluation provided and noted it did not consider any mention of a legal standard, as he was not
ordered to provide one.
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order allowing each party to do so for their parenting time, and the twins attended preschool
half the month in La Grange, Illinois, and half the month in Colorado, in accordance with the
court’s imposed “two-week on, two-week off” schedule.
¶ 11 The cause finally proceeded to trial in June 2022. The twins were now 5½ years old and
would soon attend kindergarten. Testimony and evidence provided by the witnesses was
lengthy and is relatively uncontested by the parties. Accordingly, we summarize it briefly
here.
¶ 12 John testified with respect to many topics covering time before the birth of the twins to
the institution of the divorce proceedings and his current circumstances. John averred that
when the parties married, they talked about living in Chicago; this is why they chose to
renovate his Willard Street property and Amber leased the apartment near the hospital in the
meantime. John described that Amber consistently participated in the renovations and
communicated repeatedly with the interior designer they hired and that she extended the
lease on the apartment amid construction. When the twins were born, they were living in
Chicago. His legal practice required him to attend court hearings daily at various locations,
while Amber worked remotely from an office in the parties’ home. According to John, this
allowed her to be the primary caregiver of the twins, including taking them to their medical
appointments, which he could not attend. He also noted that she was the one who researched
day care and schooling options for them, even before they were born, and regularly traveled
with them to Colorado as soon as four months after their birth. He admitted that Amber was
“pretty much exclusively” the one who cared for the twins. With respect to their divorce,
John claimed that when the apartment lease ended, there was one last month of anticipated
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construction on the Willard Street property, so they decided Amber would take the twins to
Colorado for that time to stay at the property she maintained there, which she did in May
2018. When John informed her of the construction’s completion in mid-June, Amber did not
return and evaded his questions until she finally told him in July 2018 that she planned to
stay in Colorado with the twins permanently. He filed his divorce petition soon thereafter.
¶ 13 In addition to testifying with respect to the ensuing proceedings, John discussed the many
visits he had with the twins during this time, as well as trips he took with them and the
increased court-ordered parenting time, which culminated in the two-week on/off schedule
that had now been in place for the last two years. John further testified that he moved to La
Grange, Illinois, where he now has a home, is located much closer to his legal practice, and is
close to various extracurricular opportunities, parks, and religious and enrichment programs
in which the twins can participate. He noted that the twins have neighborhood friends and a
good relationship with their cousins and grandparents who live nearby and have helped care
for them. He also testified about a typical day when he has the twins in Illinois, the area
schools, and the fact that he has already enrolled them in kindergarten in his district. Finally,
John testified that he did not consider the parties to have a multistate relationship but, rather,
that the children had always lived in Illinois and had never lived in Colorado. In his view,
Amber’s travels to Colorado once the twins were born comprised nothing more than visits
there. He averred that he never told Amber he would move to Colorado and he believed they
intended to live in Illinois and raise the twins here.
¶ 14 John’s sister, Elizabeth Kenney Augustine, who is also a La Grange village board trustee,
testified regarding life in that city, her family’s relationship with the twins, and her
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observations of John’s relationship with them. She discussed La Grange extensively,
including its award-winning schools, parks, and recreational opportunities. She noted that she
and her family live only seven blocks from John, that her children and the twins play together
frequently, and that their families celebrate many holidays together. She also described
John’s relationship with the twins as very close, involved, and healthy, with enthusiastic and
nurturing components. She further stated that she and Amber never discussed Amber, John,
or the twins living outside Illinois. 4
¶ 15 Like John, Amber testified with respect to topics ranging from before the birth of the
twins to the institution of the divorce proceedings to her current circumstances. She stated
that when she met and married John, she lived in corporate housing in Dallas while
maintaining her home in Colorado, which she had had for many years. She averred that when
she found out she was pregnant and that her pregnancy was high-risk, she signed the lease on
the Chicago apartment so she could be near Northwestern Hospital in anticipation of medical
care the twins would need upon and following their birth; she stated she extended the lease
for the same reason. Amber testified that, once the twins were born, she was their primary
caregiver, usually bathing, feeding, and putting them to bed before John arrived home from
work, and that John never cared for them on his own during that time. Also, during that time,
John’s parents did not see the twins often. She discussed the twins’ health problems upon
birth and all the research she did, doctors she contacted, and medical appointments she took
4
John presented the testimony of additional friends who further testified with respect to the
benefits of living in La Grange as well as their observations of his relationship with the twins. As
their testimony provided little impact on the trial court’s decision at issue, we need not repeat it
herein.
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them to without John’s assistance. Once the twins were able to fly, she started flying back
and forth with them from Chicago to Colorado, doing so at least seven times between April
2017 and May 2018, whereupon she brought them to Colorado to stay permanently. She
further testified regarding her home in Colorado, which she described as in a rural
neighborhood that is only 10 minutes from Colorado Springs. She erected a playground on
the property for the twins, and they maintain horses and family pets, including dogs and cats
to which the twins are bonded. She also transformed her living room into a Montessori play
space, and she has enrolled the twins for kindergarten in The Classical Academy, an area
school. The neighborhood contains many other children who are friends with the twins;
Amber has also started a moms’ support group, and the twins participate in various
extracurricular activities, with her parents interacting with/caring for them multiple times a
week and her brother and sister and their families living nearby.
¶ 16 With respect to the two-week on/off parenting schedule, Amber testified it has been hard
on the twins; she noted that they consider Colorado their home as it has been a constant place
in their lives and as John had only recently purchased his La Grange home. Like John, she
testified regarding a typical day with the children while they are with her in Colorado, as well
as what she considered to be the positive and negative attributes of their time with John.
Finally, Amber testified that she never intended, and she and John never spoke about, her
developing her professional business in Chicago so as to move here; she never sought regular
employment in Illinois. Rather, the plan had always been to allow John time to build a legal
practice in Colorado, which he began by obtaining his law license there, and that they would
then all move to Colorado to live as a family.
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¶ 17 Wesley Jolly, director of academic services at The Classical Academy, testified with
respect to this school at which Amber had enrolled the twins for its upcoming kindergarten
term. Briefly, he stated that the school is the largest charter school in Colorado, it has 3700
students ranging from kindergarten to twelfth grade, and it focuses on “classical” education.
He stated that kindergarten classes are capped at 18 students, sports and other extracurricular
activities are offered, and electronic devices are purposefully limited. He further noted that
the school consistently ranks in the top 10% to 20% of all schools in Colorado.
¶ 18 Court-appointed expert Dr. Ravitz testified about his evaluation of the parties with
respect to relocation and the report he compiled and submitted to the trial court in June 2020.
He explained that in this case, because the parties were clearly both adequate and competent
parents, he did not feel the need to interview anyone other than them to complete an
evaluation as to relocation, and that the parties’ choice to live in different states will
necessarily result in one of them losing their regular physical interaction with the twins upon
the court’s final decision. Moreover, he did not believe either party was being manipulative
in choosing where they wanted to live, but rather, had good faith reasons for their desires and
for wanting the children to stay with them. Dr. Ravitz did not refer to statutory relocation
factors during his evaluation. His ultimate conclusion was that, from a “forensic mental
health standpoint,” the twins should remain in Colorado with Amber. He noted that, as far as
general educational, social, and extracurricular opportunities, there was really no difference
between growing up in Illinois versus growing up in Colorado. However, he found that
Amber is their primary caregiver and has been for their entire lives, a fact John did not
dispute during the evaluation. Accordingly, he noted that what distinguished Illinois and
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Colorado most in this case was Amber’s psychological well-being, which was of significant
import, as her comfort level as a parent is directly tied to Colorado where her family is
significantly involved in the twins’ lives and upon whom she relies to provide care when she
is not available. While he acknowledged that, at the time this cause was filed, the twins had
spent the majority of their lives physically in Chicago, Colorado has been the twins’
“primary home for all of their conscious lives.” He believed that both parties loved the
children and could meet their needs; however, he concluded that Amber would have more
difficulty meeting those needs if she were in Illinois than John would have meeting those
needs if he were in Colorado. It was his opinion that the twins should remain in Colorado
with Amber and John should have extensive visitation with them.
¶ 19 Dr. Kraus, who, again, was retained upon John’s motion, testified as to the report he
provided to the trial court in 2020. In addition to speaking with John, Amber, and the twins,
Dr. Kraus also interviewed family members on both sides, including both sets of
grandparents, and he referred to statutory factors in his evaluation. Regarding Amber, Dr.
Kraus commented that she was insistent that she and the twins had always lived in Colorado
and that John long knew that this was the family’s plan; however, Dr. Kraus noted that he
found no information to verify this and he characterized Amber’s trip with the twins to
Colorado in May 2018 as “a set up[,] almost deception,” giving the impression she was going
to return but knew she would not. Regarding John, Dr. Kraus averred there was a strong bond
between him and the twins during the evaluation with “very positive interaction.” Dr. Kraus
observed that both extended families were supportive of the twins, with John’s in La Grange
being larger and Amber’s in Colorado being smaller, but with Amber’s parents being
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particularly involved with them and their spending more time with the twins to be an
“immediate enhancement” for the twins should they remain in Colorado. Dr. Kraus
additionally considered both schools at issue and determined their comparison to be “a
wash.” When asked to give his opinion within a reasonable degree of medical certainty
whether the twins should relocate to Colorado, Dr. Kraus opined that they should not. He
noted it would worsen the relationship between them and John and make it “more difficult to
sustain in the level that would be sustained if he was having regular interactions with” them
were they in Illinois. When asked about a reasonable parenting time schedule, he opined that
one could not exist if the twins remained in Colorado and that one could only be
implemented if the twins and both parents were in Illinois. However, he also opined that
were both parties and the children to remain in the same state (either Illinois or Colorado),
John should not be given equal parenting time, as he desired. Rather, Dr. Kraus
recommended that John should have parenting time 5 out of every 14 overnights, with
Thursday through Monday one week and Thursday only the next week, and that Amber
should have the children the remaining 9 out of 14 overnights. Dr. Kraus pointed out that
John admitted to him that when he and Amber were together, she typically performed 75% of
the child care duties and he performed about 25%. Though acknowledging that the twins
“could do well in either location,” Dr. Kraus opined that the twins should not be allowed to
relocate and should remain in Illinois due to the manner in which Amber left and the effect
relocation would have on their relationship with John.
¶ 20 GAL Kuzniar testified with respect to her investigation, evaluation and report to the trial
court, which included meetings with the parties and the twins, visits to the parties’ homes,
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discussions with Drs. Ravitz and Kraus, and supplemental reporting that brought her
investigation through January 2022. Kuzniar described the cause as “more complex than
simple relocation,” as “the parties resided in two different states, and the children traveled
from state to state.” Noting the court’s prior order that classified the parties’ relationship as
multistate and with the children not residing continuously in either state for a period of six
months before the divorce petition was filed, Kuzniar believed the cause was not a traditional
relocation matter but, instead, focused her investigation and evaluation slightly more on who
would be the appropriate primary parent, with relocation to flow from that determination,
namely, were it to be John, the children should live in Illinois and were it to be Amber, they
should live in Colorado. Critically, Kuzniar testified that her investigation and reports
examined every one of the statutory factors regarding relocation; she gathered information on
each of them and provided that to the trial court.
¶ 21 It was Kuzniar’s belief that the current situation arose because when John and Amber
became involved and married, they never discussed her intent to remain in Colorado and his
intent to remain in Illinois. With respect to Amber, Kuzniar testified that she “has been a
hyper-diligent mom” who had prepared for the twins’ education, medical care, and childcare
since before they were born. Her home in Colorado affords each twin his own bedroom, and
the boys share a bathroom; the home is arranged like a Montessori school and has a large
basement, a playground, horses, and pets. The twins have a variety of activities available to
them in Colorado, and they are very close to Amber’s parents, who they see multiple times a
week and who help care for them often. With respect to John, Kuzniar testified that he works
long hours when the twins are not with him, and he would have to arrange childcare for them
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were they to live in Illinois, as his parents could not care for them due to their ages and lack
of mobility. At John’s home, the twins share a bedroom and they and John share a bathroom.
At the time of her visit, John’s home was not childproofed and had some safety issues. While
Amber was very detailed in communicating with John and quick to respond on the
OurFamilyWizard app, John was slower to communicate and sometimes did not respond at
all. Moreover, John admitted that Amber was the twins’ “primary parent” and had no
complaints about her care of them. Kuzniar examined the parties’ proposed parenting plans,
noting that Amber’s acknowledged and provided for the parties living in different states
while John’s required them to both live in Illinois. She further averred that, even if the parties
both lived in Illinois, John’s own expert, Dr. Kraus, recommended John have less than the
50% parenting time his proposal sought. Kuzniar stated she, likewise, would not support
giving John primary residency of the children in Illinois. Ultimately, Kuzniar’s
recommendation was that the twins should reside in Colorado with Amber. Since the parties
wanted to remain in their respective states, she would support Amber as the primary parent, a
conclusion she noted was in line with both Drs. Ravitz’s and Kraus’s recommendations.
¶ 22 Following the hearing, the trial court presented a lengthy oral ruling, accompanied soon
thereafter by a detailed written decision, addressing allocation of parenting time, allocation of
decision-making, and Amber’s petition for relocation. At the outset, the court noted for the
record that it had reviewed everything presented, including the pleadings, prior court orders,
expert witness reports, trial exhibits, photographs, and the applicable statutes, and that if it
did not refer to some piece of evidence specifically, that did not mean it had not considered
it. The court also made clear that it found both parties to be “wonderful and loving parents,”
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and it was its belief that, when they married, which occurred quickly after they met and
experienced an unplanned pregnancy, they were “living in two different states” and they “just
didn’t know each other”; Amber “never understood” John’s commitment to remain in Illinois
and practice law, and John “never understood” Amber’s attachment to Colorado and her
family. After viewing their testimonies, the court noted that it was “not sure [it] had the full
story” from Amber regarding her original intention when she went to Colorado with the
twins in May 2018, and similarly, it “was not sure” with respect to John’s intention when he
moved his boat to Colorado during that same time and pursued legal licensure there. In any
event, it found both parties credible with positive demeanors while testifying but “somewhat
evasive in their communications with each other,” which led to the cause being a “complex
and difficult” one to resolve. The court further found Amber’s lay witness Jolly and John’s
lay witness Augustine to be credible, and Dr. Ravitz to be “very credible,” Dr. Kraus to be
“credible and straightforward,” and GAL Kuzniar to be “very credible” and that she had
“conducted a thorough investigation and showed a fabulous demeanor on the witness stand.”
¶ 23 After these preliminary comments, the court turned to the three issues presented. First, it
addressed each of the 15 statutory factors regarding allocation of decision-making contained
in section 602.5(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS
5/602.5(c) (West 2018)), and after its analysis, found they favored Amber and, thus, it
allocated sole decision-making to her over the twins’ medical and educational matters. Next,
the court addressed each of the 17 statutory factors regarding allocation of parenting time
contained in section 602.7(b) of the Act (750 ILCS 5/602.7(b) (West 2018)), and after its
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analysis, found they favored Amber; it then issued a detailed breakdown of the parties’
awarded parenting time in accordance with its decision.
¶ 24 Finally, and at issue in the instant cause, the trial court addressed each of the 11 factors
regarding relocation contained in section 609.2(g) of the Act (750 ILCS 5/609.2(g) (West
2018)) and, after its analysis, granted Amber’s petition to relocate the twins to Colorado.
Before doing so, it commented on two initial matters: prior litigation and statutory notice
requirements. First, it discussed the prior trial court orders of March 2019 (the UCCJEA
jurisdictional finding that the twins’ home state was Illinois) and September 2020 (the
sua sponte two-week on/off schedule implemented while custody litigation was pending).
The court noted that with respect to the latter, and up until that point, “the children’s primary
residence was always with [Amber], wherever she was located”; with respect to the former, it
concurred with the previous trial court and similarly concluded that “the children lived in a
multi-state existence throughout their lives and have continued to do so.” It reasoned that the
home state order “was issued for adjudication of jurisdictional issues” only, and Illinois was
properly chosen because, since the children has not resided in either state for six months prior
to the filing of the divorce petition, and given that John had filed first and did so in Illinois, it
was reasonable for Illinois to assert jurisdiction over the twins. Second, the court noted that
Amber had properly filed her petition for relocation, even though she had not technically
complied with section 609.2’s statutory written notice requirement before doing so. The court
stated that Amber “has continuously exercised either the majority of parenting time, or, since
the September 2020 order of Court, no less than equal parenting time.” The court found that
because of this, and in addition to “the specific and unique facts presented,” the written
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notice requirement “does not fit here[, a]nd to the extent that provision is applicable, any
failure to satisfy it does not preclude [Amber from] obtaining relief from this Court.” It
further specified that it could not, nor did not, find her proposed “relocation” was without
good cause or done in bad faith, particularly since she had maintained a home in Colorado
since 2006, long before, as well as throughout the entirety of, the parties’ marriage.
¶ 25 In turning to the statutory relocation factors, the court began by stating that “the present
matter is not strictly speaking a relocation case” in that the “unique facts specific to the
parties’ residences and their children’s lives present an unusual hybrid case.” The court found
that the first factor (see 750 ILCS 5/609.2(g)(1) (West 2018)), reasons for intended
relocation, favored Amber, as her “support system, improved environment and happiness” as
“the long-term primary caretaker” of the twins comprised “meaningful reasons for [her]
intent to rear the children in Colorado,” in accordance with Dr. Ravitz’s testimony. The
second factor of a good faith objection to relocation favored John, as the court believed he
“genuinely fears his relationship will be impacted.” See 750 ILCS 5/609.2(g)(2) (West
2018). The court found the third factor slightly favored Amber; she had “the deepest history
and quality relationship with the children and has been their primary caregiver, teacher and
nurturer,” but John has developed a relationship with them as well, especially since the two-
week on/off court order of which he has taken full advantage. See 750 ILCS 5/609.2(g)(3)
(West 2018). Factors four and five both favored Amber; the court noted schools in either area
would be appropriate for the children, but it heard more regarding a specific Colorado
school’s curriculum with a calendar more amenable to the parenting time it would be
allotting than the general school testimony regarding La Grange schools, and similarly, while
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both parties provided extended families for the twins, Amber’s in Colorado (particularly her
parents) was and has been more involved with the children. See 750 ILCS 5/609.2(g)(4)-(5)
(West 2018). The court found the sixth factor, the anticipated impact of relocation on the
twins, to be neutral. See 750 ILCS 5/609.2(g)(6) (West 2018). In discussing this factor, the
court repeated Dr. Ravitz’s finding that the twins “have lived in Colorado for all of their
conscious lives.” It commented that the children “only know their multi-state existence with
their mother and their father” and it did not “see that changing.” It acknowledged that
awarding Amber primary custody would necessarily impact the time the twins spent with
their father and its frequency, but noted that this did not equate to a negative impact on their
relationship. Factor seven, regarding the ability to fashion a reasonable allocation of
parenting time and decision-making in light of relocation, slightly favored Amber, as the
court had already evaluated these in Amber’s favor within the other portions of its decision.
See 750 ILCS 5/609.2(g)(7) (West 2018). The court further found that while factor eight
regarding the children’s wishes did not apply, factor nine also slightly favored Amber, as
while both parties have been able to afford and cooperate regarding the inherent travel
required here, Amber still had the best primary childcare plan, given her parents’ assistance
in this. See 750 ILCS 5/609.2(g)(8)-(9) (West 2018). The court found the tenth factor to be
neutral or slightly favored John; it acknowledged that, regardless of where the twins lived,
there would be a disruption to their relationship with the other parent, but one which the
parties have already attempted to alleviate “with a robust schedule of daily Skype contact
***, something that the children have known throughout their conscious lives as normative.”
See 750 ILCS 5/609.2(g)(10) (West 2018). Finally, in addressing the eleventh factor’s catch-
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all provision, the court declared that Amber’s “role as the consistent, lengthy, primary
caretaker is vital to this Court’s determination” and found that, “given the evidence adduced
at trial,” primary residency with John in Illinois would be “traumatic” for the twins. See 750
ILCS 5/609.2(g)(11) (West 2018).
¶ 26 Lastly in its decision, the court wished to clarify that under the relocation statute, the
terms “primary residence” and “home state” have “a substantive legal distinction” and “refer
to different concepts and imply different or distinct analyses,” a point Amber argued during
the proceedings but John disputed. The court reiterated that, accordingly, while the prior
March 2019 court order correctly found Illinois to be the twins’ home state for jurisdictional
purposes, that did not compel it to now conclude that Illinois was also their primary
residence. Rather, the court was required to conduct “a review of the relocation factors”
pursuant to statute, which it did and which “compels the conclusion that residency in
Colorado with [Amber] is proper.”
¶ 27 ANALYSIS
¶ 28 On appeal, John first contends that the trial court erred in failing to regard the instant
cause as a relocation matter pursuant to section 609.2 of the Act and that, via various
missteps in interpreting the statute, impermissibly shifted the burden of proof to him. He then
contends that, even were this not the case, the court erred in weighing the evidence at trial
and granting Amber’s petition to relocate the children to Colorado. We disagree.
¶ 29 As a threshold matter, the parties dispute the applicable standard of review. John argues
that the trial court “effectively failed to apply the standards set forth in Section 609.2” and
did not handle this as a true relocation case because it only “facially” mentioned the statutory
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factors and “briefly summarized” them without considering them. He states that in light of
this, the court did not apply the statute and instead reduced this to a best interests analysis,
thereby committing an error of law which requires de novo review. Later in his brief,
however, and perhaps as an alternative argument, John seemingly admits the court did
consider the statutory relocation factors, but argues that its ultimate decision regarding them
was against the manifest weight of the evidence. Amber, meanwhile, avers that a trial court’s
decision regarding relocation is to be reviewed pursuant to a manifest weight of the evidence
standard.
¶ 30 John’s advocacy for de novo review is a difficult one to understand, especially in light of
the trial court’s lengthy decision in this matter. We are baffled by his assertion that the court
only “facially” mentioned the statutory factors or simply summarized them without applying
or considering them. The record belies such an assertion. Unmistakably, and undeniably, the
trial court examined every applicable statutory factor and applied the facts presented to each
of them, with explicitly detailed care, both in its oral colloquy and then again in its written
decision. We have, at length herein, noted as much, and John admits that the court examined
the factors later in his brief on appeal (albeit to his disapproval).
¶ 31 We also do not quite understand John’s repeated claim that the trial court, somehow
impermissibly or incorrectly, reduced this relocation matter to a best interests analysis,
thereby shifting the burden to him and, again, requiring de novo review. Contrary to his
intimations that the court “abandoned any relocation analysis and made its[ ] finding strictly
a best interest analysis,” we note that, even were this true, which the record demonstrably
disproves, the consideration of a child’s best interests is part and parcel of section 609.2
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governing relocation. Indeed, the very subsection that lists the relocation factors at issue
introduces those factors by first stating that, when determining the propriety of a relocation
request, “[t]he court shall modify the parenting plan or allocation judgment in accordance
with the child’s best interests.” (Emphasis added.) 750 ILCS 5/609.2(g) (West 2018); see
In re Marriage of Kimberly R., 2021 IL App (1st) 201405, ¶ 74. In addition, our supreme
court has spoken directly to this point and declared that “[i]n adjudicating a relocation
petition [filed under section 609.2(g) of the Act], a trial court’s paramount consideration is
the best interests of the children.” In re Marriage of Fatkin, 2019 IL 123602, ¶ 32. We will
discuss this more below, but at this juncture, we certainly do not see how the trial court’s
consideration of the twins’ best interests when deciding Amber’s relocation petition, which is
authorized, and even demanded, by the relocation statute at issue, would be considered an
abrogation or misapplication of the law requiring de novo review on appeal.
¶ 32 Our point here is this: we are not persuaded by John’s assertion that we are to apply
de novo review to the instant matter, and we find no reason to depart from our well-
established case law holding the exact opposite to be true.
¶ 33 That is, precisely because the adjudication of a relocation petition inherently requires a
best interests determination, reviewing courts should not reverse a lower court’s decision
with respect to such petitions “ ‘unless it is clearly against the manifest weight of the
evidence and it appears that a manifest injustice has occurred.’ ” Kimberly R., 2021 IL App
(1st) 201405, ¶ 75 (quoting Fatkin, 2019 IL 123602, ¶ 32) (this is the standard applicable to
determinations involving a child’s best interests and relocation petitions, as the latter
necessarily involves the former). “ ‘The trial court’s decision is against the manifest weight
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of the evidence only if the evidence “clearly” calls for a conclusion opposite to that reached
by the trial court or only if the factual findings on which the decision depends are clearly,
plainly, and indisputably erroneous.’ ” Kimberly R., 2021 IL App (1st) 201405, ¶ 75 (quoting
In re Parentage of P.D., 2017 IL App (2d) 170355, ¶ 18). It is this standard, with its marked
deference, that is appropriate for the review of relocation matters “because it recognizes that
the trial court, as the trier of fact, had a superior opportunity ‘to observe both parents and the
child[ren] and, thus, is able to assess and evaluate their temperaments, personalities, and
capabilities.’ ” Kimberly R., 2021 IL App (1st) 201405, ¶ 75 (quoting Fatkin, 2019 IL
123602, ¶ 32). As such, and significantly, “ ‘ “[t]he presumption in favor of the result
reached by the trial court is always strong and compelling in this type of case.” ’ ” Fatkin,
2019 IL 123602, ¶ 32 (quoting In re Marriage of Eckert, 119 Ill. 2d 316, 330 (1988), quoting
Gallagher v. Gallagher, 60 Ill. App. 3d 26, 31-32 (1978)); accord Kimberly R., 2021 IL App
(1st) 201405, ¶ 75 (such considerations dominate the review of relocation matters).
¶ 34 I. Case Treatment and Burden of Proof
¶ 35 With this standard of review in mind, we turn to John’s initial contention on appeal,
which overarchingly asserts that the trial court’s mistreatment of the cause impermissibly
shifted the burden of proof to him as the nonpetitioning party to prove that the twins should
remain in Illinois. First, he takes issue with the court’s description of the cause as a “non-
traditional” relocation matter and its finding that the children had resided in Colorado “all of
their conscious lives,” concepts he insists do not exist as relocation considerations under
section 609.2. He concludes that the court’s use of these terms “clearly shows that [it] did not
treat this as a relocation case nor apply the applicable statute” and that it abandoned any
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relocation analysis it was called upon to provide. Second, John takes issue with the court’s
finding that the twins’ primary residence was always with Amber, wherever she was, rather
than Illinois. He insists that this conclusion shows the court completely disregarded both the
fact that Amber’s filing of the petition to relocate was a legal admission that the twins’
“primary residence was and continued to be Illinois,” and the prior March 2019 order finding
the twins’ home state to be Illinois, a holding from which, he claims, it “[l]ogically” “should
follow” that their primary residence is also Illinois. Based on the record before us, we find
that John mischaracterizes the court’s decision and there is no merit to his assertions.
¶ 36 We begin by noting John is correct that the burden in the cause was, and always
remained, with Amber. Pursuant to the relocation statute, the burden rests with the parent
desiring to relocate to prove that relocation is in the best interests of the children, as
measured by the factors set forth in section 609.2(g). See Kimberly R., 2021 IL App (1st)
201405, ¶ 78 (citing In re Marriage of Levites, 2021 IL App (2d) 200552, ¶ 57).
Accordingly, then, Amber, as the petitioner, had the burden of production, namely, to
produce evidence on the twins’ best interests, as well as the burden of persuasion, namely, to
convince the court that it was in those best interests to relocate them to Colorado according to
the statutory factors. See Kimberly R., 2021 IL App (1st) 201405, ¶ 78 (citing Levites, 2021
IL App (2d) 200552, ¶ 61); see also P.D., 2017 IL App (2d) 170355, ¶ 15 (“The parent
seeking removal has the burden of proving, by a preponderance of the evidence, that removal
would be in the child’s best interest.”); accord Eckert, 119 Ill. 2d at 325.
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¶ 37 This, however, is where our agreement with John ends, as we do not find, and John fails
to adequately demonstrate, that the trial court impermissibly shifted the burden to him in its
treatment of this cause.
¶ 38 First, contrary to John’s insistence, we find no issue with the court’s comments that this
was a “non-traditional” relocation case. Having reviewed the facts presented, we could easily
agree with the court in this respect. As it noted, this was not the typical case where two
parents live in one state and, upon the end of their union, one of them seeks to relocate to a
new state with the children. Rather, the trial court here found that the parties consistently
maintained a multistate relationship—long before their marriage, throughout its entirety, and
after the birth of the twins. This made the case unusual and unique from the start. The record
shows that when the parties met in 2016, John was living in Illinois, and Amber was living in
Texas; she was living there in temporary housing due to her employment, and she was
simultaneously maintaining her Colorado property, which she had already owned for some
10 years. In reviewing the parties’ relationship history, the court commented that it was not
sure it got “the full story” on Amber’s intentions about living in Illinois; some facts indicated
she had a relationship to Illinois, such as her signing the apartment lease and extending it, but
it could not be denied that other facts indicated the opposite, such as her never holding an
Illinois driver’s license, never filing an Illinois tax return, never voting in Illinois, and
essentially splitting her time between the two states. Moreover, the court found that just as
unclear as Amber’s intentions were, so too were John’s about living in Colorado; he worked
and owned property in Illinois, but he filed tax returns in Colorado, baptized his children
there, drove and stored his boat at Amber’s Colorado home, where he also performed
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significant landscaping, applied for the twins’ passports listing Colorado as their permanent
residence, and applied for, tested for, and received a license in Colorado to practice law.
¶ 39 Additionally, once the twins were born, it was not as if the parties settled down in either
state. To the contrary, as the trial court found, the twins themselves lived a multistate
existence as much as Amber and John did. The moment they were medically cleared from the
hospital NICU, they took their first trip to Colorado. Trips and time spent in Colorado
thereafter, as detailed by the trial court, are, suffice to say, too numerous and voluminous to
repeat here. They essentially split their time in both states beginning at four months old. The
twins were even enrolled and attended two separate preschools, one in Colorado and one in
Illinois, at the same time. In line with the trial court’s evaluation, we are hard-pressed to
conclude that the parties’ situation was anything but nontraditional within the context of
relocation. Indeed, this was not a case which involved a “move,” as traditionally defined, of
the twins from Illinois to Colorado. This was because a multistate relationship between
Illinois and Colorado was the parties’, and the twins’, reality. We do not believe this can
plausibly be denied, and contrary to John’s claim, there is certainly more than enough
evidence in the record to support the court’s conclusion.
¶ 40 More importantly, we fail to see how the court’s comment that this was a nontraditional
relocation case somehow evidences a dereliction of its duty to consider the statutory factors
of section 609.2 or an improper shift of the burden of proof from Amber to John. Again, as
proven by its oral and written decisions, both more detailed and thorough than this Court is
used to seeing, the trial court most certainly did no such thing. In fact, the trial court
specifically noted that precisely because this was “not strictly speaking a relocation case,”
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but rather, “an unusual hybrid case” due to “the unique facts specific to the parties’
residences and their children’s lives,” its review and ultimate decision “warrant[ed] an
examination of all potentially applicable statutory provisions of the [Act].” The record then
shows the court clearly conducted such an examination, particularly the factors in section
609.2(g), when discussing relocation. Moreover, we note that this trial court was not the only
to comment on the nontraditional nature of this matter. GAL Kuzniar’s own comments
reflected the same when she testified that this cause was “more complex than simple
relocation,” since “the parties resided in two different states, and the children traveled from
state to state”; experts Drs. Ravitz and Kraus expressed similar sentiments. Additionally,
when the parties first appeared for the March 2019 jurisdictional analysis, the trial court,
which was called upon to determine the twins’ home state, likewise declared that this matter
was “much more involved” than a typical relocation case, as it was “truly one of the parties
sharing a multi-state relationship.” Because of this, that court, just as the instant trial court,
stated it needed to turn to an examination of all the unusual facts pertaining to the lives of the
children before rendering its decision. What proves quite interesting to us in this respect is
that John takes no issue on appeal with that prior court’s commentary recognizing the
nontraditional nature of this case when he describes its holding—a holding that found the
twins’ home state to be Illinois, and a holding which, undoubtedly, favored John. It was only
when the instant trial court issued its decision granting Amber’s relocation petition, a
decision unfavorable to him, that he asserts error regarding essentially the same comment—
one the record otherwise supports and one that, without more, we cannot conclude had the
consequence of inappropriately shifting the burden from Amber to him, as he claims.
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¶ 41 We find the same to be true of the other phrase the trial court used in its oral and written
decisions that John takes issue with, that is, that the twins had lived in Colorado “all of their
conscious lives.” John asserts that not only was it improper for the court to deviate from the
statute by considering such a “vague personal and not scientific concept,” but also there was
“no testimony” regarding this and the court necessarily “created its own statutory exception.”
However, John mischaracterizes the record, and again, we do not find the court’s comment to
have improperly shifted the burden here. First, there was, indeed, testimony and evidence
about the concept of the twins’ “conscious lives.” This came directly from Dr. Ravitz, the
expert appointed specifically by the trial court to assist in its evaluation of the relocation
petition. Dr. Ravitz visited and interviewed the parties, prepared a written report, and
subsequently testified, as directed by the court, which found him to be “very credible.” Dr.
Ravitz was frank in his finding that there was no real difference between the twins growing
up in Illinois versus Colorado when it came to their general educational, social, and
extracurricular opportunities. He also noted that both parties were competent and adequate
parents who were not being manipulative but, rather, just differed as to where they wanted to
reside. As such, a decision had to be made about where the twins should live. He explained
that, with everything else about the same, he looked at the cause from a “forensic mental
health standpoint,” evaluating the twins’ lives in Chicago, where they were more physically
present from their births until about 18 months, as distinguished from their lives in Colorado,
where they were more physically present from May 2018 (the time of divorce) until June
2020 (when he wrote his report). From this, Dr. Ravitz concluded that the twins’ “primary
home for all their conscious lives” was Colorado, lives that were, up to this point, certainly
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short, but at four years old and having built a community of relationships and activities, had
become markedly different than when they were infants in Chicago.
¶ 42 Again, we fail to see how Dr. Ravitz’s comment about “conscious lives,” and the trial
court’s reference to it, shows the court did not treat this as a relocation case, failed to apply
the applicable statute, or abandoned any relocation analysis, as John maintains. Section
604.10(b) of the Act states that a trial court “may seek the advice of any professional,
whether or not regularly employed by the court, to assist the court in determining the child’s
best interests,” and his report is to contain, in part, “any recommendations of the professional
concerning *** the child’s relocation” and “an explanation *** regarding the resulting
recommendations.” 750 ILCS 5/604.10(b) (West 2018). Following the statute, the court
employed Dr. Ravitz in this role, and Dr. Ravitz complied, describing the considerations he
used when forming his opinion. The court, having found Dr. Ravitz “very credible” when
testifying as to his report, had every right to rely on his testimony. See Kimberly R., 2021 IL
App (1st) 201405, ¶ 75 (witness credibility determinations in relocation petition hearings lie
solely within province of trial court).
¶ 43 Also, and again pursuant to statute, section 609.2(g)(11) states that, in addition to the
listed statutory factors to be used when considering the propriety of relocation, the trial court
may also consider “any other relevant factors bearing on the child’s best interests.” 750 ILCS
5/609.2(g)(11) (West 2018). The concept of “conscious lives,” as explained by Dr. Ravitz,
was a factor both applicable to the twins here and relevant to his opinion. While “conscious
lives” is not a statutory term, that the court considered the concept, as testified to by its own
expert, which it was allowed to do in accordance with the statute, does not amount to error.
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Moreover, the court mentioned this concept only briefly. In its oral decision, it stated that it
“like[d]” the concept of “conscious lives” as it meant “since you’ve had memory, since
you’re fully aware of what’s happening.” The twins’ memories and awareness of their
surroundings certainly classify as a relevant factor bearing on their best interests. In its
written decision, the court referred to their “conscious lives” in relation only to the statutory
factor of anticipated impact of relocation on the twins, finding that while it would necessarily
impact the frequency of time they spent with John, that did not equate to a negative impact
on their relationship. It was not as if the trial court relied solely on the concept of “conscious
lives” in rendering its decision. As the ultimate benchmark was, and always remained, the
twins’ best interests, and as the relocation statute allows the trial court to consider “any other
relevant factor bearing” thereon, we find no impropriety in the court’s repetition of a
consideration used by its appointed expert witness, whom, again, it found to be very credible.
¶ 44 John’s final claim in relation to his assertion that the trial court’s mistreatment of this
cause resulted in inappropriate burden-shifting lies in his assertion that the court
inappropriately determined the twins’ primary residence to have always been with Amber,
wherever she was. John states this finding demonstrates the court disregarded the inherent
admission in Amber’s petition that their primary residence was Illinois and the prior trial
court’s March 2019 order finding the twins’ home state to be Illinois. Again, we find no
merit to John’s claim.
¶ 45 Simply put, the trial court’s finding that the twins’ primary residence has always been
with Amber, wherever she was, was proper and supported by the evidence. We understand
John’s assertion that by the mere filing of the relocation petition, Amber technically made a
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legal admission that the twins’ primary residence was Illinois. This is, after all, the essence of
such a petition—asking for the relocation of children from their primary residence—and it
inherently requires the petitioner to make an admission. However, in this cause, this is a
matter of form over substance that has no real applicability to the unique circumstances here.
We have already discussed at length that this was not a traditional relocation case. No expert
who testified, and no court involved in this matter, ever viewed it as such. So, the fact that
Amber’s petition technically made a legal admission that the twins’ primary residence was
Illinois is, in our view, of no real consequence. Instead, what is more critical to us is the
evidence presented as to the statutory relocation factors and the children’s best interests and
whether it supports the trial court’s ultimate decision to grant relocation. In that respect, as
the record shows, all three expert witnesses—court-appointed expert Dr. Ravitz, GAL
Kuzniar, and John’s own retained expert Dr. Kraus—testified that not only did they each,
separately, determine that Amber was the twins’ primary caregiver, but also that John
admitted, to each of them separately, this to be true. The court took into account that this
somewhat changed later when the two-week on/off visitation schedule was instituted during
the divorce proceedings, but it could not deny that the twins “were with their mother
primarily, most of the time” since they were born. In contrast to John’s assertion, we do not
believe Amber’s mere filing of her petition to relocate the twins legally bound the court to
issue a holding that Illinois was the twins’ primary residence without any consideration of the
evidence before it, evidence that in this unique case clearly contradicts such a finding.
¶ 46 Finally, we disagree with John that the trial court’s finding that the twins’ primary
residence was always with Amber somehow ignored or violated the prior trial court’s order
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of March 2019 that declared the twins’ home state to be Illinois. John’s insistence that a
primary residency finding of Illinois must, or logically should, follow from a home state
determination of Illinois is legally incorrect. Rather, John conflates the two concepts, which
are clearly not the same. As the record demonstrates, since John was the first to file for
divorce (which he did in Illinois), and since the twins were living with Amber in Colorado at
the time, the trial court in Illinois needed to determine if it had jurisdiction over the twins
pursuant to the UCCJEA. What made it difficult for that court was that the UCCJEA defines
a child’s home state as the state in which he has lived “for at least six consecutive months
immediately before the commencement of a child-custody proceeding.” 750 ILCS 36/102(7)
(West 2018). Noting “[t]he reality is that the children did not live in either Illinois or
Colorado continuously for [a] six[-]month period immediately prior to” the institution of the
divorce proceedings, that court looked to other factors, such as the twins’ connection to
Illinois and the fact that John filed first, in order to find their home state to be Illinois.
¶ 47 However, this determination was under the UCCJEA and for jurisdictional purposes only.
The UCCJEA home state analysis “ ‘was promulgated to end custody jurisdictional disputes
between states’ ” and is undertaken to determine what court has subject matter jurisdiction
over a child in dissolution of marriage proceedings when more than one state is involved.
Fleckles v. Diamond, 2015 IL App (2d) 141229, ¶ 32 (quoting In re Joseph V.D., 373 Ill.
App. 3d 559, 561 (2007)). Once a determination regarding subject matter jurisdiction is made
under the UCCJEA, that statute gives that court continuing jurisdiction, which is “ ‘simply a
procedural limit on when the court may hear initial custody matters.’ ” In re Marriage of
Milne, 2018 IL App (2d) 180091, ¶ 27 (quoting McCormick v. Robertson, 2015 IL 118230,
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¶ 27). Considerations regarding home state determinations include topics like the child’s
“habitual residence” (as defined by the UCCJEA), the timing of the commencement of the
action, and the child’s connection to and temporary absence from a certain jurisdiction. See
Milne, 2018 IL App (2d) 180091, ¶¶ 27-30.
¶ 48 Primary residency under the Act, meanwhile, is an entirely different legal concept under
an entirely different statute. When the instant trial court made its ruling as to the twins’
primary residence being Colorado three years later in June 2022, it was no longer dealing
with jurisdiction, which, again, had long been determined by the prior court in March 2019.
Rather, it was dealing with relocation concerns and, of course, a best interests analysis, under
the Act. At issue now was the substance of the parties’ dispute, not the state in which the
dispute was to be decided. That Illinois was determined to be the twins’ home state for
jurisdictional purposes in dealing with the dissolution petition but Colorado was determined
to be their primary residence after a best interests determination related to the statutory
relocation factors was not inappropriate because the former is not dispositive of the latter.
They are, instead, legal concepts with substantively different distinctions.
¶ 49 Moreover, and once again contrary to John’s insistence, the record shows that the instant
trial court in no way ignored the prior court’s March 2019 order. Instead, it mentioned it
several times in its decision and, as we have here, noted the difference between that court’s
findings within the context of a procedural home state jurisdictional analysis at the start of
this litigation and the substantive primary residence review in the context of relocation and
best interests at the end of this litigation. It further noted that section 609.2(h) of the
relocation statute refers to both “home state” and “primary residence” and uses them
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No. 1-22-1558
differently, further indicating that they are different legal concepts. See 750 ILCS 5/609.2(h)
(West 2018). From this, the instant trial court concluded that while the prior order was
correct in asserting Illinois to be the twins’ home state jurisdiction, it “did not compel a
conclusion that the children’s primary residence was in Illinois.” John provides us with no
legal precedent, and we find none, to mandate that a determination of primary residence must
“follow” from a determination of home state. Our statutory scheme makes clear that these are
not one in the same.
¶ 50 Ultimately, and regardless of all this, the trial court’s comment that the twins’ primary
residence was always with Amber, wherever she was, along with the comments we have
analyzed here that John takes issue with, are just that: comments. The crux of the trial court’s
decision was its examination of the relocation factors of section 609.2(g) of the Act. That is
where our focus now turns in order to determine whether the court’s grant of Amber’s
petition to relocate the twins based on those factors was against the manifest weight of the
evidence.
¶ 51 II. Statutory Relocation Factors
¶ 52 John’s final contention on review is that the trial court “misapplied” the section 609.2(g)
relocation factors and thereby erroneously granted Amber’s petition to relocate the twins to
Colorado. First, he insists that the court refused to apply the notice requirements of section
609.2(d) (see 750 ILCS 5/609.2(d) (West 2018)) and instead simply declared that Amber
“relocated with good cause.” He then claims the court erred in weighing certain factors it
found to be in Amber’s favor. Based on the record, we do not find that the trial court’s grant
of Amber’s relocation petition was against the manifest weight of the evidence.
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¶ 53 Briefly, with respect to notice, John again mischaracterizes the record. As the trial court
noted, section 609.2(d) of the relocation statute has a written notice requirement, stating that
the relocating parent “must provide at least 60 days’ written notice before the relocation
unless such notice is impracticable,” and this notice must contain the intended date of the
parent’s relocation, the address of the intended new residence if known, and the length of
time relocation will last if it is not for an indefinite or permanent period. 750 ILCS 5/609.2(d)
(West 2018). Section 609.2(d) further states that a court “may consider a parent’s failure to
comply with the notice requirements of this Section without good cause *** as a factor in
determining whether the parent’s relocation is in good faith.” 750 ILCS 5/609.2(d) (West
2018).
¶ 54 The trial court here did not refuse to consider the notice requirement and simply declare
Amber had relocated with good cause, as John insists. Rather, it spent quite a bit of time,
particularly in its oral decision, discussing its applicability to this case and how it weighed
Amber’s technical violation of it in relation to the other factors involved. The court initially
explained it did not believe the requirement applied here because it did not “fit[ ] the history
of this case” due to this family’s multistate relationship and their residency. This is more than
understandable and supported by the record. In addition to the unique relationship, John
knew Amber was taking the twins to stay in Colorado the day they left in May 2018, he knew
where exactly they would be staying, and there was no particular day planned for their return;
he testified that he planned to call them whenever the Willard Street construction was
complete. As the trial court noted, the evidence suggested that Amber herself may not have
even known when she left for Colorado that day in May 2018 that she and the twins would
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relocate there and not return, which did not come to light until later, in June/July 2018. While
John’s expert Dr. Kraus believed there was an appearance of deception on Amber’s part, Dr.
Ravitz and GAL Kuzniar explicitly disagreed. Accordingly, there was no error in the court’s
reasoned conclusion that the statutory notice requirement did not apply.
¶ 55 Moreover, the court noted that, even if it were to conclude that it applied, it may, per the
latter portion of the notice section, consider Amber’s failure to comply as a factor in
determining whether her relocation was in good faith. Citing Amber’s maintenance of her
Colorado home for over a decade, her support system there, and the home environment for
the twins in that location, it concluded that it “could not find her move to be without good
cause or in bad faith.” Again, we find no error in the court’s determination. According to the
statute, the only consequence for failing to comply with the notice requirement for relocation
is that the trial court “may consider” that failure as a factor in determining whether the
parent’s relocation “is in good faith.” 750 ILCS 5/609.2(d) (West 2018). It is not, contrary to
any intimation from John, an automatic denial of a relocation petition or a preclusion from
obtaining relief. The record shows the trial court followed section 609.2(d). It acknowledged
Amber’s failure to comply, considered it as a factor, and ultimately found that it did not show
a lack of good faith. There is nothing more to say on this point.
¶ 56 We have finally reached the statutory relocation factors of section 609.2(g), of which
there are 11. On appeal, however, John asserts error with respect to only five of them: factors
(1) the circumstances and reasons for relocation, (3) the history and quality of each parent’s
relationship with the children, (4) educational opportunities, (5) the presence or absence of
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extended family at the existing and proposed locations, and (7) whether the court will be able
to fashion a reasonable allocation of parental responsibilities if relocation occurs.
¶ 57 Our supreme court has made clear that relocation determinations “ ‘cannot be reduced to
a simple bright-line test.’ ” Fatkin, 2019 IL 123602, ¶ 32 (quoting Eckert, 119 Ill. 2d at 326).
Rather, because the children’s best interests are involved, they “ ‘must be made on a case-by-
case basis, depending, to a great extent, upon the circumstances of each case.’ ” Fatkin, 2019
IL 123602, ¶ 32 (quoting Eckert, 119 Ill. 2d at 326); accord Kimberly R., 2021 IL App (1st)
201405, ¶ 74. Thus, as the unique facts of each relocation case dominate it, comparisons to
other relocation cases are of little value. See Kimberly R., 2021 IL App (1st) 201405, ¶ 74
(citing Levites, 2021 IL App (2d) 200552, ¶ 71). Ultimately, the determination of a relocation
petition
“ ‘cannot be reduced to a simple tally of which party “won” a majority of the enumerated
factors; instead, because some factors in a particular case may weigh more heavily than
others, the trial court must consider all factors and evidence touching on the issue and
must arrive at a reasonable result.’ ” Kimberly R., 2021 IL App (1st) 201405, ¶ 74
(quoting Levites, 2021 IL App (2d) 200552, ¶ 71).
¶ 58 With respect to factor (1), circumstances and reasons for relocation (see 750 ILCS
5/609.2(g)(1) (West 2018)), the court found that this favored Amber because, in addition to
its belief she had not relocated in bad faith, the support system, improved environment, and
Amber’s psychological well-being supported that conclusion. The trial court observed that,
based on the testimony, particularly that of GAL Kuzniar and Dr. Ravitz, the evidenced
demonstrated the twins enjoyed a better support system and a healthier environment with
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their grandparents and pets in Colorado, and Amber’s well-being, which trickled down to
them, was also improved in Colorado. We recognize John’s view that the court’s
determination can be seen by some to “encourage” a parent to relocate with the children
without asking permission and then seek forgiveness after the fact, while rewarding her with
custody. However, as the record demonstrates, that is hardly what the trial court did here in
evaluating this factor. It did not simply state that because Amber was in Colorado with the
twins, the twins should relocate there. We have stressed this throughout our decision: the trial
court conducted a thorough analysis of the cause before it, in accordance with the applicable
statute. Again, that cannot be denied, and based on the record, we cannot say that the
evidence presented regarding the reason for relocation does not support the court’s finding as
to this factor.
¶ 59 John next challenges factor (3), the history and quality of each parent’s relationship with
the children and, specifically, whether a parent has substantially failed or refused to exercise
parental responsibilities allocated to him under the parenting plan or allocation judgment. See
750 ILCS 5/609.2(g)(3) (West 2018). John claims the trial court weighed this factor based
only on Amber’s unilateral decision to remove the twins from Illinois and did not consider
that he sought their return long before the court’s order. That is not the case. The court found
this factor only slightly favored Amber. It praised John repeatedly for exercising his
parenting time and for developing a relationship with the twins once the two-week on/off
schedule was instituted. It also knew the procedural posture of the case from its inception,
including all the motions John had filed. However, it found that Amber had the deeper
history and quality relationship with the twins, as she had been their primary caregiver since
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No. 1-22-1558
birth. Again, the evidence supported this conclusion. All three expert witnesses, even John’s
own, testified that this was the case and that John himself admitted as much to each of them.
John also testified before the trial court that Amber had cared for the twins “pretty much
exclusively.” As the court accurately relied on the evidence, we cannot say its conclusion
was erroneous.
¶ 60 With respect to factor (4), educational opportunities (see 750 ILCS 5/609.2(g)(4) (West
2018)), John claims the court erred in finding this weighed in Amber’s favor because she
presented an “absence of meaningful testimony regarding the educational opportunities
which would be presented should relocation be granted.” He cites the fact that GAL Kuzniar
and Dr. Ravitz did not personally investigate the schools in either La Grange or Colorado,
that Amber’s witness (Colorado school director Jolly) had never met the twins, and that his
witness (Augustine) distinctly testified as to her “direct firsthand accounts, interactions, and
opportunities actually afforded to [her] children who attended schools in La Grange.” The
record, however, directly counters John and demonstrates not only that Amber did present
“meaningful testimony” on this subject, but also that the court spent much time considering
this factor, perhaps more than any other. First, even though GAL Kuzniar and Dr. Ravitz did
not investigate schools in either area per se, the twins were not even school-age at the time of
their reports. With respect to educational opportunities, however, they both testified, as did
John’s own expert Dr. Kraus, that schools in both areas were appropriate; Dr. Ravitz stated
there was no difference between them, Dr. Kraus considered any differences to be “a wash,”
and GAL Kuzniar stated the same, with the caveat being that Amber was providing more
educational opportunities at the time because she had transformed her home in Colorado into
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a Montessori-teaching setting, while John, in La Grange, had not done anything comparable.
Additionally, the trial court recognized that schools in both areas were highly ranked and had
received awards. While Augustine testified, credibly as per the court, as to her experiences
with La Grange schools, we would note that, as John’s sister and a La Grange village board
trustee, she is considerably partial; also, we cannot say her children’s experiences are entirely
relevant, as the twins are younger than her children and have particular health concerns.
¶ 61 As the court discussed at length, it simply “heard more testimony regarding the Colorado
school,” particularly through the testimony of school director Jolly, as presented by Amber.
Though he might not have yet met the twins in person at that time is of little consequence;
again, they were not of age to even attend the school at that time. He was able, however, to
directly testify as to the particular educational opportunities they would receive at the school,
The Classical Academy, in which Amber would be seeking to enroll them when they were of
age. He detailed its curriculum, philosophy, methodology, and other factors like class size
and extracurriculars. Interestingly, there was no comparable evidence regarding any specific
La Grange school. Additionally, the court took much time in discussing the different school
district schedules, finding the Colorado school’s to be more facilitative of the plan the court
had fashioned with respect to the allocation of parenting time. Based on all this, the trial
court’s assessment of this factor was not against the manifest weight of the evidence.
¶ 62 John next claims that the court erred in finding that factor (5), the presence or absence of
extended family at the existing location and the proposed location (see 750 ILCS
5/609.2(g)(5) (West 2018)), favored Amber because she failed in her burden of proof as to
this consideration. John insists this is because Amber did not present testimony from
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members of her extended family living near her in Colorado and neither GAL Kuzniar nor
Dr. Ravitz investigated these relationships, while the court otherwise heard much live
evidence regarding John’s family’s relationship with the twins, such as his sister’s testimony.
To the contrary, the trial court heard extensive testimony about the twins’ maternal relatives
and their strong connection to them, specifically, Amber’s parents, siblings, and their
children. For example, when Amber could not be present to care for the twins, they stayed
with her parents in Colorado. This occurred not only after the divorce proceedings were
instituted, but also during the marriage when the parties were a couple; instead of John caring
for them, Amber would accompany the twins to Colorado and leave them with her parents
before traveling to work events. There was also much testimony of, as the trial court noted,
the twins’ “extremely close relationship” with their maternal grandparents, the activities they
enjoyed together, their frequency, and the twins’ connection to their pets in Colorado,
whereas John’s parents were not with the children as often due to their ages and mobility
issues. Based on this record, we cannot find that the trial court’s determination was
unsupported simply because Amber did not fly her family in to testify. Nor was the court’s
determination erroneous because GAL Kuzniar and Dr. Ravitz did not believe they needed to
interview either family. They specifically noted that both parties were competent, responsible
parents with familiar support systems and, thus, there was no need to do so, in their
professional opinions. Again, the trial court found Amber, GAL Kuzniar and Dr. Ravitz to be
credible witnesses. Without more, we cannot say its decision, based on their testimony and
the evidence presented, was against the manifest weight of the evidence.
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¶ 63 Finally, John argues that, in evaluating factor (7), of whether the court will be able to
fashion a reasonable allocation of parental responsibilities between the parents if relocation
occurs (see 750 ILCS 5/609.2(g)(7) (West 2018)), it did not compare the schedule it put forth
to the current two-week on/off schedule in place pending litigation, which would result in
John losing some 20% of his current parenting time. John’s challenge is a misfire for several
reasons. First, the trial court was keenly aware of the difference in the current schedule and
the one which would result if relocation were granted. It commented on this many times in its
decision. It also noted the reality of the situation, which we, too, cannot deny. That is, when
the two-week on/off schedule was implemented, the children were not school-aged; when
they were, they were attending preschool, which afforded this family the opportunity to
enroll them in two different preschools in two different states at the same time, where they
could attend each for two-week periods without affecting their academic careers. Years later,
at the time of the instant decision, the twins were 5½ years old: kindergarteners. And,
inherently, as time has continued to progress, so have they: this December, they will be
turning seven, full-fledged first graders. Their academic careers are now underway, and it is
no longer a viable option to split their schooling between two states on a biweekly basis; this
will most certainly become more and more of a reality as time moves on. It is a concept that,
simply, is no longer tenable.
¶ 64 Moreover, and even more significant, even presupposing, as John would have us, that
Amber would return to Illinois should the grant of her relocation petition be reversed, none of
the experts, not even John’s own, Dr. Kraus, ever entertained the idea that John should have
equal parenting time with the twins upon the determination of this matter. GAL Kuzniar
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No. 1-22-1558
opined that John should not be given primary residency of the twins; she explicitly stated she
would not support that idea nor an equal split in custody. Dr. Ravitz stated they should live in
Colorado and have visits with John. And, Dr. Kraus specifically admitted that John should
not receive equal parenting time even if Amber were to live with the twins in Illinois. In fact,
Dr. Kraus went further to state John should have only alternating weekends and one weekday
overnight each week with the twins, were they to live here. Accordingly, all three of the
expert witnesses agreed John should receive something less than a 50/50 split of time he
sought, regardless of where the twins were living. The two-week on/off schedule John refers
to was, always and clearly, a temporary one only in place during this litigation. The trial
court clearly considered it, and found it was no longer feasible or in the twins’ best interests
as they grow up. It cannot be denied that relocation will necessarily affect the amount of time
a child will spend with one of his parents. The goal of this factor, however, is for the trial
court to be able to establish a reasonable and realistic schedule, not a perfect one. See, e.g.,
In re Marriage of Eaton, 269 Ill. App. 3d 507, 515 (1995). Based on the record, the trial
court here did just that, and we find no error in its determination of this factor.
¶ 65 We find, contrary to any assertion, that the trial court here in no way simply reduced its
section 609.2(g) factor analysis to a tally of which party “won” the most factors. Rather, we
conclude, instead, that it clearly considered all the factors, as well as the evidence touching
on each of them, and weighed all this properly. Its ultimate determination was more than
adequately supported by the record, which it viewed first-hand, along with its observations of
the parties’ and their witnesses’ testimony. As such, we cannot, and under these
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circumstances of a total absence of any indication of manifest error will not, disturb its
reasoned decision.
¶ 66 CONCLUSION
¶ 67 The trial court here was faced with a contested relocation petition arising from an
incredibly unique, nontraditional, multistate living arrangement, one that existed since the
birth of these children (and most certainly before). It conducted a detailed and expansive
hearing at which both parties were given a full and fair opportunity to present evidence and
testimony. At its conclusion, it entered an equally detailed and expansive 54-page oral and
16-page (mostly single-spaced) written decision describing its factual findings and its
application of these to each of the relevant statutory factors. Only after taking everything
presented before it into consideration did the court ultimately conclude that these “compel[ ]
the conclusion that residency in Colorado with [Amber] is proper” for the twins.
¶ 68 It is obvious to anyone even cursorily glancing at the record in this matter that the
parties—Amber and John equally—are wonderful parents who deeply love their children.
Would that every child this Court encounters be in that same situation. And yet, this is what
makes this cause all the more difficult. The trial court recognized it, and we do, as well. The
parties, as is their right, have chosen not to live near each other upon their separation.
However, their children, as is their right, are to reside in the location that is proven to be in
their best interests in light of the applicable statutory factors. The trial court found that this
comprised their relocation from Illinois to Colorado to live with Amber. There is no perfect
solution inherent in relocation cases, which are markedly difficult, no matter the outcome.
But the court’s decision here was a perfectly reasonable one based on the record. Therefore,
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and without more to overcome the “ ‘ “always strong and compelling” ’ ” presumption in
favor of the result reached by trial courts in relocation cases, we agree with its ultimate
decision here. Fatkin, 2019 IL 123602, ¶ 32 (quoting Eckert, 119 Ill. 2d at 330, quoting
Gallagher, 60 Ill. App. 3d at 32).
¶ 69 Accordingly, for all the foregoing reasons, we affirm the judgment of the trial court.
¶ 70 Affirmed.
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In re Marriage of Kenney, 2023 IL App (1st) 221558Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2018-D-5945;
the Hon. Debra Walker, Judge, presiding.
Attorneys Matthew C. Arnoux, of Birnbaum, Gelfman, Sharma & Arnoux,
for LLC, of Chicago, for appellant.
Appellant:
Attorneys Myra A. Foutris, of Foutris Law Office, Ltd., of Chicago, for
for appellee.
Appellee:
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