Aug 22, 2023

IICLE Family Law Flash Points - August 2023

Determination That Illinois Was Children’s Home State Was Not in Contravention of Trial Court’s Ultimate Decision To Grant RelocationIn a factually unique relocation case in which the young minor children (twins) were moved consistently between Illinois and Colorado after their birth until almost two years later, when the parties separated, the trial court found Illinois was their home state at the time the underlying petition was filed, mandating that the parenting issues be heard in Illinois, but ultimately ruled that the wife would have primary decision-making and the children would live primarily with her in Colorado, thereby granting her petition for relocation.In re Marriage of Kenney,2023 IL App (1st) 221558. The case involved several days of trial from multiple fact witnesses in addition to testimony from a guardian ad litem (GAL), Dr. Ravitz, and Dr. Kraus and a lengthy oral and written opinion by the trial court. The husband appealed, taking issue with the trial court’s description that this was a “nontraditional” relocation case. 2023 IL App (1st) 221558 at ¶35. The appellate court disagreed that this language was problematic. The evidence showed that the parties maintained their own multistate relationship long before their marriage, after it, and after the birth of the twins. There was conflicting evidence about the wife’s intentions to move to Illinois long term and the husband’s intentions to possibly move to Colorado. Ultimately, the trial court found that the children’s primary residence was with the wife, wherever she was. That finding did not contradict a legal admission made by the wife that Illinois was the children’s home state when she filed her petition for relocation after Illinois was determined to be the children’s home state. The appellate court stated: “[T]his is a matter of form over substance that has no real applicability to the unique circumstances here.” 2023 IL App (1st) 221558 at ¶45. The court noted that “primary residency” is an entirely different legal concept from “home state,” which is a legal concept under the Uniform Child-Custody Jurisdiction and Enforcement Act, 750 ILCS 36/102(7), and determines only in which state the proceeding will take place. 2023 IL App (1st) 221558 at ¶¶46 – 47. The ultimate determination of the merits of the case involved the best-interests standard under the factors set forth in the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101,et seq.Trial Court’s Granting of Relocation from Illinois to Colorado UpheldInKenney, supra,the husband appealed the trial court’s granting of the wife’s petition to relocate their twins from Illinois to Colorado. The husband argued, in addition to the argument that the court misapplied the relocation factors, that the wife had failed to comport with the notice requirement under the IMDMA. The appellate court did not find error with the trial court’s reasoning that the notice requirement did not apply because the children were constantly being moved from Illinois to Colorado and the husband knew the wife was taking the twins to stay in Colorado on the day she left and there was no particular planned date for their return. The evidence suggested that the wife herself may not have known that she intended to permanently relocate to Colorado until a month or two later. The children had a better support system and healthier environment with their maternal grandparents in Colorado, the wife had a deeper history and quality relationship with the children, and it was uncontested she was their primary caregiver. It was not error for the GAL and experts not to investigate schools in Colorado as the children were not school age at the time of trial; the trial court did hear direct testimony from the Colorado school director regarding potential educational opportunities in Colorado. The children’s extremely close relationship with the wife’s parents and the fact that they were intimately involved in their lives, including being back-up childcare when the wife had to work, also weighed in the wife’s favor. The appellate court held the trial court did not just engage in an analysis of “which party ‘won’ the most factors,” but considered all of the factors and weighed them appropriately. 2023 IL App (1st) 221558 at ¶65. Its decision to grant relocation was not against the manifest weight of the evidence. 2023 IL App (1st) 221558 at ¶62.Husband’s Suit Against Wife’s Boyfriend for Intentional Infliction of Emotional Distress Allowed To Move ForwardAfter learning that his wife was having an affair, the husband embarked on a surveillance campaign in which he had the wife and her boyfriend under surveillance for 12 hours per day for three years at a cost of $1.295 million.Kornick v. Goodman,2023 IL App (2d) 220197. For purposes of this case, the husband sued the boyfriend for intentional infliction of emotional distress, alleging he had sustained severe emotional distress after viewing “vile and vulgar” text messages that the boyfriend had sent the couple’s 13-year-old son, who had autism. 2023 IL App (2d) 220197 at ¶5. The boyfriend brought a motion for summary judgment, which the trial court granted. The husband appealed, and the appellate court reversed. The appellate court’s opinion turned on the second prong of the required elements for tortious interference: the defendant either intended that his conduct should inflict severe emotional distress or knew that there was a high probability that his conduct would cause severe emotional distress. Based on current caselaw, a plaintiff may maintain a cause of action even if the alleged outrageous conduct was not directed specifically at the plaintiff, and therefore whether the facts were sufficiently egregious to warrant damages was for the trier of fact to resolve. The ultimate question of fact was whether the boyfriend should have known that vile and disturbing text messages sent to the husband’s 13-year-old son would be seen by the husband and cause him emotional distress.

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