trends and deveLoPments USA - ILLINOIS Trends and Developments Contributed by: Anita Ventrelli Schiller, DuCanto & Fleck Schiller, DuCanto & Fleck is one of the largest who are experts in divorce tax matters, forensic family law firms in the US, specialising in high accounting, financial planning, employee ben- net worth divorce. The firm’s team comprises 42 efits, commercial litigation, high-stakes paren- attorneys, with offices located in Chicago, Lake tal responsibility, international law, and handling Forest, and Wheaton, Illinois. Founded in 1981, highly complex cases dealing with multimillion- Schiller DuCanto & Fleck helps affluent clients dollar estates and multi-generational wealth. resolve family law disputes through a variety of The firm represents celebrities, high-profile ath- avenues such as litigation, mediation and ADR. letes, C-suite executives, business profession- The firm prides itself on its exceptional discre- als, entrepreneurs, and their spouses in dealing tion and the unmatched resources it provides to with family law matters. clients, including access to prominent lawyers Author Anita Ventrelli is a senior partner at Schiller DuCanto & Fleck, where she specialises in providing personalised legal strategies to clients in various fields, including professionals in the USA and abroad, celebrities, athletes, executives and entrepreneurs. Anita holds a 40-hour mediation certification and offers honest assessments of the legal process, educating clients about their options and consequences. Her meticulous execution and courtroom results have earned her noteworthy recognition, including a fellowship of the International Academy of Family Lawyers, a fellowship of the American Academy of Matrimonial Lawyers, numerous leadership roles with the American Bar Association, and accolades from the Illinois State Bar Association. 13 CHAMBERS.COMtrends and deveLoPments USA - ILLINOIS Contributed by: Anita Ventrelli, Schiller, DuCanto & Fleck Schiller, DuCanto & Fleck 321 N Clark Street Suite 1200 Chicago IL 60654 United States of America Tel: +1 312 641 5560 Fax: +1 312 641 6361 Email: chicagoservice@sdflaw.com Web: www.sdflaw.com Changes in Statutes Affecting Child child and how much time each parent would Relocation in Illinois spend with a child; and Most parents do not think about what would • it did not state how high a legal standard of happen if they could not agree on where their proof the parent needed to meet. child will live. In cases where parents do not live together and do not align when it comes to life- By way of an example, legal proof standards planning, one parent may want to relocate with range from lowest to highest as follows – pre- a child while the other parent does not or cannot ponderance of the evidence, clear and convinc- join in the move. Prior to 2016, Illinois courts ing evidence, and proof beyond a reasonable used a statute referred to as “the removal stat- doubt. Eventually, a preponderance of the evi- ute” – which required a finding that letting the dence standard was specified when answering child move would serve the child’s best inter- these questions in cases decided in the Illinois ests – to decide questions raised when a parent appellate courts. wanted to relocate with a child to another state. That statute put the burden on the parent who Traditional factors in court decisions wanted to make the move to prove the case for Based on case law, the main factors to consid- best interest. er when making the decision in the child’s best interest include: The statute raised more questions than it pro- vided answers, given that: • whether the proposal will enhance the general quality of life for both the custodial parent and • it did not list factors for courts to consider; the child; • it did not have any process for required • the motives of the custodial parent for seek- notice; ing the move (ie, determining whether the • it did not say how court-ordered evaluations move is merely a ruse intended to defeat or should deal with relocation when evaluat- frustrate visitation); ing which parent would make decisions for a 14 CHAMBERS.COMtrends and deveLoPments USA - ILLINOIS Contributed by: Anita Ventrelli, Schiller, DuCanto & Fleck • the motives of the non-custodial parent for to relocate so as to keep the issues distinct resisting removal; from one another, whereas previously a court • the visitation rights of the non-custodial par- faced with making a decision about how to ent (including the child’s relationship to each allocate parenting time and a decision on parent and other family members); and relocation did not have a mandate to make • whether a realistic and reasonable visita- decisions about parenting time first; tion schedule can be reached if the move is • adding a requirement for a parent to give allowed. notice when asking to relocate with a child; • stating when a parent asking to relocate must New relocation statute give notice; In keeping with societal evolution, the Illinois leg- • stating what a parent asking to move must islature updated the removal statute and redes- include in the notice; ignated it as a statute on relocation. In broad • stating that, if a parent does not give the terms, the new relocation statute contemplates proper notice and just moves the child, the not only relocation outside Illinois but also relo- court can take it into account when assess- cation within Illinois – thereby recognising that a ing the good faith of the request and this may move across a state line to a new home that is impact awards of attorney’s fees; an hour away does not disrupt a family as much • stating factors that courts should consider as a move within the same state, where children when considering whether a move aligns with could live as much as four or five hours away a child’s best interests; and from a parent. • including a distance requirement where a move will keep the case in Illinois. This new iteration of the statute passed the Illi- nois legislature in 2016. It added structure to Decisions after the change to the statute how courts decide the issues and determined Even with all that the updated statute includes, an order for making such decisions by: it elected not to incorporate or override the prior appellate court decisions on relocation issues. • defining a parent’s relocation as a substantial Those decisions differed from one appellate change in circumstances – meaning par- court district to another, giving rise to the belief ents no longer have to fight an initial battle that decisions in this area turn exclusively on the to prove that moving entitles them to ask to facts of each case. Decisions after the change in change parenting schedules, given that they the statute include the following. must prove a substantial change in circum- stances in order to make changes to their • In re Marriage of Fatkin – the appellate court children’s schedules; overturned a trial court decision to allow relo- • stating that only a parent with the majority of cation where: parenting time or 50% of the parenting time (a) the father trying to relocate to live with his can seek relocation – meaning any parent parents when his mother had a terminal concerned about the possibility of relocation illness did not give the court enough proof affecting a decision on parenting time may that he could not find employment with- consider first seeking a majority or 50% of out moving; parenting time before requesting permission (b) the father did not provide the court with 15 CHAMBERS.COMtrends and deveLoPments USA - ILLINOIS Contributed by: Anita Ventrelli, Schiller, DuCanto & Fleck evidence of the quality of schools the chil- sion on relocation that modifies parenting time dren would attend; or parental decision-making does not have to (c) the mother provided 44% of the child- wait for all case issues to be resolved before care; and an appeal. A decision that denies a request for (d) the children would have to leave their relocation does not qualify under the Supreme friend networks. Court Rule that allows the immediate appeal of • In re Parentage of PD – the appellate court decisions about custody judgments, parenting affirmed a decision denying relocation where allocation judgments, and orders that modify the mother seeking to relocate to where her such judgments. husband planned to work: (a) did not appear to support the father’s role Another procedural rule discussed in relocation as a parent; and decisions under the new iteration of the statute (b) over-stated the case in the evidence she relates to the standard of review the appellate submitted for a number of the factors court applies. One standard of review decides listed in the statute, including her allega- whether the trial court abused discretion, where- tion that her husband would lose his job if as another – known as “de novo review” – allows he did not relocate. the appellate court to decide the issue as though • In re Marriage of Kavchak – the appellate hearing the case for the first time. Owing to the court affirmed a decision allowing reloca- fact-intensive quality of these decisions and the tion where the mother had the opportunity to trial court being the only court to observe the change jobs and where none of the evidence demeanour of witnesses, appellate courts will demonstrated the mother having any history only reverse if they decide that the trial court of inappropriate conduct with regard to the made a decision that was clearly against the father’s relationship with the child. manifest weight of the evidence and it appears that manifest injustice occurred. This makes a These decisions do not necessarily signal a decision of the trial court in a relocation matter relaxation in the quality of facts that will lead among the most difficult to overturn. to a successful relocation, although (or regard- less of whether) they signal a difference in what Role of unpublished opinions in relocation prompts a parent to seek relocation. The deci- matters sions remain fact-specific – with no one factor Illinois Supreme Court Rule 23 (“Rule 23”) man- having any greater importance than any other dates that appellate courts enter summary writ- factor – and turn largely on having evidence for ten orders instead of full opinions in certain types each factor and an absence of poor attitude on of cases. They only decide a case in an opinion the part of the relocating parent towards the when a majority of the panel deciding the case other parent’s relationship with the child. determines that the case satisfies at least one of the following criteria: On the procedural side, the appellate court dis- cussed the principles determining the kinds of • the decision establishes a new rule of law or removal decisions a parent can appeal right after modifies, explains or criticises an existing rule a decision and which kinds of removal decisions of law; or must wait until all case issues resolve. A deci- 16 CHAMBERS.COMtrends and deveLoPments USA - ILLINOIS Contributed by: Anita Ventrelli, Schiller, DuCanto & Fleck • the decision resolves, creates or avoids Practical considerations an apparent conflict of authority within the Although not part of the relocation statute, the appellate court. portions of the Illinois statutes that deal with chil- dren use the nationwide principles of the Uni- Most relocation cases that turn on facts will not form Child Custody Jurisdiction Enforcement satisfy the criteria for an opinion, so the rule Act to decide which of the 50 states will have requires that they be decided by a written order. the right to make decisions about a child. They These concise written orders must succinctly call this “continuing exclusive jurisdiction”. It state: means that whichever state has the jurisdiction to make decisions about custody or parenting • a concise syllabus of the court’s holding(s) allocation issues also gets to make the decision in the case (in a separate introductory para- about relocation. graph); • the germane facts; At the time of writing (September 2023), no • the issues and contentions of the parties federally mandated uniform law requires all the when appropriate; states to make decisions about relocation using • the reasons for the decision; and the same set of rules. As a result, trends in this • the judgment of the court. area include the need for parents thinking about both divorce and relocation at the same time Any opinion or order entered under the portion to consider the differences between the laws of the rule requiring a written order is not prec- that direct how courts decide parenting issues edential, except to support contentions of dou- in their state of residence and those of the des- ble jeopardy, res judicata, collateral estoppel, tination state when deciding whether: or law of the case. A non-precedential written order entered on or after 1 January 2021 may • to try to relocate with consent of the other be cited for persuasive purposes. When cited, a parent before beginning litigation; or copy of the order must be furnished to all other • to litigate in their state of residence before counsel and the court. Written orders will have moving. a notice on the first page that reads “NOTICE: This order was filed under Supreme Court Rule When parents – whether married or not – fin- 23 and is not precedent except in the limited ish court proceedings concerning who gets to circumstances allowed under Rule 23(e)(l)”. make parenting decisions and what parent- ing schedule they will use while they live in the Since the passage of the new relocation statute, same geographic area, they do not anticipate appellate courts have decided the lion’s share possible later court proceedings over a move. of relocation cases using Rule 23 written orders Court orders or judgments on parenting cannot instead of opinions. This stands as testament to be locked in stone, which makes the possibil- the tendency of relocation cases – apart from ity of change inevitable. For this reason, parents those that decide against parents who act in should continue to track aspects of their parent- bad faith – to resist trends, instead letting each ing relationship, such as: case’s facts drive the analysis. 17 CHAMBERS.COMtrends and deveLoPments USA - ILLINOIS Contributed by: Anita Ventrelli, Schiller, DuCanto & Fleck • one parent’s attitude towards the other par- Many parents who reach agreements about their ent’s involvement in parenting; children never experience court proceedings. • missed parenting time; The court process involves putting testimony • the time each of the parents can spend with into evidence. To structure testimony effectively, their child, given work and other commit- the questions and answers need to lay the foun- ments; dation by providing certain background informa- • the contact the child has with family members tion, which can be difficult to recall with the pas- (and where family members live); sage of time. Making notes of dates, locations • issues a child faces at school and in the com- and persons present during conversations or munity; and occurrences and being sure to retain copies of • whether a child has any issues with either records and communications from school and parent. activity providers and medical professionals can help meet the criteria for getting evidence before a court. 18 CHAMBERS.COMCHAMBERS GLOBAL PRACTICE GUIDES Chambers Global Practice Guides bring you up-to-date, expert legal commentary on the main practice areas from around the globe. Focusing on the practical legal issues affecting businesses, the guides enable readers to compare legislation and procedure and read trend forecasts from legal experts from across key jurisdictions. To find out more information about how we select contributors, email Katie.Burrington@chambers.com
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