Scott v. Haritos

2022 IL App (1st) 220074No. 1-22-0074
Third Division
September 30, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
DAVEN R. SCOTT, ) Appeal from the Circuit Court
) of Cook County.
Petitioner-Appellant, )
) No. 2020 D 079351
v. )
) The Honorable
AMBER HARITOS, ) William Yu,
) Judge Presiding.
Respondent-Appellee. )
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 Respondent, Amber Haritos, filed a petition to relocate from Illinois to Tuscaloosa,
Alabama with the minor child, age two years, she had with petitioner, Daven R. Scott. The
parties never married. After a two-day evidentiary hearing, the trial court granted Amber’s
petition to relocate. Daven appeals, arguing that the court’s order granting relocation was
against the manifest weight of the evidence. For the following reasons, we affirm.
No. 1-22-0074
¶2 BACKGROUND
¶3 Amber and Daven began dating on or around March 25, 2017. At that time, Amber was a
graduate student at the University of Illinois at Springfield. Daven resided in Chicago with his
mother but traveled every other weekend to spend time with Amber. After Amber’s graduation
in 2018, she moved to the Roseland neighborhood of Chicago, where she resided with her
family, not Daven. On March 8, 2019, one child, whom we will call A.H.S., was born out of
the relationship. Following A.H.S.’s birth, there was no specific parenting plan or maintenance
put into place but Daven at times assisted Amber by providing childcare supplies and also
engaged in parenting time as permitted by Daven’s work schedule, as Daven worked as a
property manager at that time. According to Amber, the parties ended their dating relationship
in August of 2019, following an incident in which Daven physically abused Amber. After this
incident, the parties continued to meet with each other on occasion and communicated
regarding their child.
¶4 On December 29, 2019, Amber moved with A.H.S. to Tuscaloosa, Alabama. The parties
dispute whether Amber sought or received permission from Daven to relocate prior to moving
with A.H.S. However, Daven remained in regular contact with both Amber and A.H.S through
telephone, text messaging, and video conferencing.
¶5 On March 18, 2020, Daven filed a petition for temporary and permanent allocation of
parental responsibilities, parenting time, and to establish child support. In his petition, Daven
alleged that Amber had prohibited and excluded him from exercising his parental
responsibilities since December 29, 2019, by relocating to Tuscaloosa, Alabama. On March
24, 2020, Daven filed a separate motion requesting that the court order Amber and the child to
return to Illinois.
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¶6 On June 10, 2020, Amber filed a petition for a court order that would permit her relocation
to Tuscaloosa, Alabama pursuant to section 609 of the Illinois Marriage and Dissolution of
Marriage Act (Marriage Act) (750 ILCS 5/101 et seq.). In her petition, Amber alleged that
relocation was in A.H.S.’s best interests because Tuscaloosa, Alabama is safer than Chicago,
has a lower cost of living, and has higher quality schools and activities for children. Around
this same time, in June of 2020, Daven also moved 122 miles away from Chicago to
Champaign, Illinois to begin employment with the Housing Authority of Champaign County.
Daven did not inform Amber or the trial court of his move from Chicago prior to the court’s
ruling on his motion to return A.H.S. to Illinois.
¶7 On September 16, 2020, the trial court issued an order instructing Amber to return to
Illinois with A.H.S. within seven days. Amber complied with the trial court’s order and
relocated with A.H.S back to her family’s residence in the Roseland neighborhood of Chicago,
where she remained through the evidentiary hearing. On September 18, 2020, the trial court
appointed a guardian ad litem to represent A.H.S.’s interests in the pending proceedings on
Daven’s March 18, 2020, petition for allocation of parental responsibilities and parenting time
and Amber’s June 10, 2020, petition to relocate.
¶8 On October 28, 2020, the guardian ad litem submitted her report to the trial court. On
January 19, 2021, the guardian ad litem submitted her supplemental report to the trial court.
However, neither of the guardian ad litem’s reports are included in the record on appeal.
¶9 On June 9, 2021, Amber filed an amended petition to relocate with A.H.S. to Tuscaloosa,
Alabama. In her amended petition, Amber again alleged that it was in A.H.S.’s best interest to
relocate due to the increased opportunities and quality of life available to Amber and A.H.S.
in Tuscaloosa, Alabama. Her amended petition further alleged that Daven had committed fraud
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on the court by failing to inform the trial court that he had moved from Chicago to Champaign
prior to the trial court’s order instructing Amber and A.H.S. to return to Illinois. Amber further
alleged that she had received an offer of employment in Tuscaloosa, Alabama that would
increase her annual earnings from $31,200 to $52,000, and that she had previously sought
employment in Chicago but had not received any offers. Finally, Amber’s petition detailed two
instances of physical abuse by Daven against her.
¶ 10 On August 9 and 10, 2021, the trial court held an evidentiary hearing on Daven’s March
18, 2020, petition for allocation of parental responsibilities and parenting time and Amber’s
June 9, 2021, amended petition to relocate, at which the following relevant testimony and
evidence was presented.
¶ 11 Amber testified that on the date of the hearing, she was 29 years old and residing in the
Roseland neighborhood of Chicago with A.H.S, who was then two years old. Amber and
A.H.S. shared the residence with Amber’s grandfather and Amber’s mother. According to
Amber, the Roseland neighborhood has a well-documented high rate of crime, violence, and
poverty. Amber testified that she had concerns for her safety and A.H.S.’s safety while living
in the city of Chicago.
¶ 12 Amber obtained a bachelor’s degree in agriculture and animal ecology from Iowa State
University and a master’s degree in public administration from the University of Illinois at
Springfield. When Amber returned to Chicago after graduate school in May of 2018, she was
unemployed but seeking employment. On or about July 9, 2018, she learned she was pregnant
by Daven. Amber testified that prior to giving birth, her relationship with Daven was “shaky,”
and that she had endured “physical, emotional, [and] mental abuse.” Due to medical issues
arising from her pregnancy, Amber remained unemployed during her pregnancy.
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¶ 13 Daven was present when A.H.S. was born on March 8, 2019, and Amber and Daven
remained in a dating relationship. However, due to financial constraints they continued to live
separately with their respective families.
¶ 14 Amber testified that by the end August of 2019, the relationship had “hit a dead end.” She
further testified to an incident of abuse by Daven that occurred on August 29, 2019. She
testified that the dispute leading to the altercation was an argument regarding Daven’s mother
smoking cigarettes in the presence of A.H.S. Amber testified that Daven struck her, resulting
in bruising to various parts of her body. Amber’s aunt heard a commotion and came into the
room, where Amber was in the corner on the floor with Daven on top of her. Amber’s aunt
pulled Daven off of Amber. The resulting bruising was documented in photographs that the
trial court admitted into evidence, however those photographs are not included in the record
on appeal. Amber did not call the police regarding this incident because she was afraid to do
so, both because of threats from Daven and also because she did not want Daven to go to jail.
Amber testified that after she and Daven broke up in August of 2019, the pair continued to
engage in family activities with one another despite Amber’s allegation of abuse, because
Amber felt it was important to have both parents involved in A.H.S.’s life.
¶ 15 The trial court also admitted into evidence a November 10, 2019, letter from Daven to
Amber in which he apologized to Amber for, among other things, putting Amber through “a
lot of humiliation, physical abuse, verbal abuse, and mentally [sic] abuse.”
¶ 16 In October of 2019, Amber’s father, who resides in Tuscaloosa, Alabama, proposed that
she and A.H.S. travel to Tuscaloosa to explore whether living there would be a good fit for
herself and A.H.S. At this time, Amber’s brother already lived with her father in Tuscaloosa.
Amber traveled with A.H.S. to Tuscaloosa on December 29, 2019. According to Amber, she
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advised Daven of her plan to travel to Tuscaloosa on a temporary basis that may become
permanent. Amber testified that her father’s residence in Tuscaloosa is about 1500 square feet,
has three bedrooms, and a fenced-in yard. She believes the community is safe. Amber testified
that after moving to Alabama, she and Daven remained in regular contact by telephone, text
messaging, and video conferencing so that Daven could interact with A.H.S. Amber testified
that she invited Daven to come visit Alabama, but that he did not. Daven occasionally sent
Amber payments of $100 to $200 dollars while Amber and A.H.S. resided there.
¶ 17 In February of 2020, Amber had a telephone conversation with Daven in which she told
him that she wished to remain living in Alabama permanently due to her belief that living there
would improve the opportunities available and quality of life for her and A.H.S. According to
Amber, Daven did not express an objection to Amber’s relocation at that time. Thereafter, the
parties continued to remain in regular contact regarding A.H.S., and Amber and A.H.S.
returned to Chicago for A.H.S.’s first birthday in March of 2020 at Daven’s request.
¶ 18 Amber testified that during this visit, on or around March 9, 2020, Daven became angry
following Amber’s refusal of Daven’s attempt to resume a romantic relationship with her.
According to Amber, Daven became angry and “tried to hold [her] in the laundry room,”
resulting in Amber’s aunt coming into the room to intervene and separate Daven from Amber.
Amber returned to Alabama with A.H.S. the following day.
¶ 19 Regarding her employment opportunities, Amber testified that she applied for a job with
Mercedes-Benz in Tuscaloosa, Alabama in February of 2020. She applied for the position
through a third-party called the Onin Group. However, Amber did not receive an offer letter
from the Onin Group until October 27, 2020, at which point she was residing in Chicago
pursuant to the court’s order to return to Illinois. Therefore, beginning on or around June 1,
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2020, while still residing in Tuscaloosa, Amber began fulltime employment with a company
called Teletech as a claims processing agent for Bank of America. At the time of the hearing,
she earned $15.00 per hour, or approximately $31,200 annually through Teletech. Amber
testified that Teletech did not permit overtime work and that her efforts to advance within
Teletech had been unsuccessful up to the date of the hearing. However, her employment with
Teletech was exclusively remote during the COVID-19 pandemic, which allowed her to care
for A.H.S. throughout the day while working. This also allowed her to continue working for
Teletech after she was ordered to return to Chicago in September of 2020.
¶ 20 Amber testified that on October 27, 2020, she received an offer letter from the Onin Group
to work for Mercedes-Benz as a national buyer within the procurement services department in
Tuscaloosa, Alabama. Amber was offered employment that would have paid her $25.00 per
hour, plus overtime, or approximately $52,000 annually. Amber testified that the offer letter
described other benefits including a 401(k)-matching program, 3.4 hours of paid time off for
every 80-hour pay period, or ten days per year, and 11 guaranteed paid holidays per year in
addition to two weeklong plant shutdowns per year. Amber further testified that Mercedes-
Benz offered onsite daycare and summer camp. However, as noted, according to Amber, she
was not able to accept the offer because she was residing in Chicago pending resolution of her
petition to relocate. Amber testified that she remained in contact with the manager of the
procurement department, and that a position was still available to her at Mercedes-Benz at the
time of the hearing.
¶ 21 Regarding her attempts to locate employment in Chicago, Amber testified that she had
applied for more than 200 positions, and that although she had interviews for some, they did
not result in employment offers.
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¶ 22 Finally, Amber testified that she believes Daven plays an important role in A.H.S.’s life
and that she would continue to try to foster the relationship between them including by paying
for three roundtrip transportations to Chicago for A.H.S. annually and by agreeing to a
reasonable parenting plan.
¶ 23 Daven testified that he was 31 years old. He was born and raised in Chicago, and prior to
moving to Champaign in June of 2020, he resided at his mother’s home approximately a ten-
minute drive from where Amber lived with A.H.S. He testified that between A.H.S.’s birth in
March of 2019 and the date of the hearing, he had three jobs, first as a property manager for
Senior Suites of Chatham, next for the United States Postal Service, and finally for the Housing
Authority of Champaign County. He left his employment at the Postal Service due to a work-
related injury for which he also received temporary disability pay for a period. Through his
employment at the Housing Authority of Champaign County, he earned approximately
$45,800 annually. Daven testified that before moving to Champaign, he sought employment
in Chicago but did not obtain any offers.
¶ 24 Daven testified that while residing in Champaign, he was exercising parenting time with
A.H.S. every other week from Thursday at 8:00 p.m. until Sunday at 7:00 p.m. Daven further
testified that he was not seeking to be A.H.S.’s primary caregiver because he believes Amber
is a good parent. He asked that the court maintain the parenting schedule and holidays in place,
and further testified that the only parenting time schedule that worked for him was the
parenting schedule then in effect, because he would not be able to provide childcare during the
day for A.H.S. if more parenting time was awarded due to his work schedule and A.H.S. might
therefore have to stay with his mother in Chicago.
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¶ 25 Regarding Amber’s December 29, 2019, relocation to Alabama, Daven testified that it was
his understanding that Amber and A.H.S. would only be gone for two weeks. He did not realize
that she planned to relocate permanently until they had a telephone conversation sometime
later, at which point Daven objected and began looking for an attorney. He testified that Amber
never informed him of any job offer from Mercedes-Benz in Tuscaloosa.
¶ 26 Daven further testified that he loves his child and enjoys spending time with her. He likes
to do activities with her, including going to the park, coloring, playing with Play-Doh, and
building things using Lego blocks. He testified that he wants to give A.H.S. the best
opportunities in life by having both parents in her daily life, and that if permitted, Amber’s
relocation would deny A.H.S. time with her father, her extended family, and her grandparents.
Daven also testified that there are good school systems in Chicago that A.H.S. could attend
and where Daven could participate in extracurricular activities with A.H.S.
¶ 27 Lastly, Daven denied Amber’s allegations of abuse, but admitted writing the November
10, 2019, letter in which he apologized to Amber for “abuse” at the suggestion of Amber’s
mother after speaking to his pastor.
¶ 28 The guardian ad litem testified that it was her understanding of her appointment in this
matter to determine whether it was in A.H.S.’s best interests to relocate to Alabama, and that
as part of her investigation she spoke with the parties, certain family members, and individuals
at Mercedes-Benz. The guardian ad litem testified it was her recommendation that A.H.S.
relocate to Alabama. She based that recommendation on Amber’s “ability to put A.H.S.’s
needs first,” while Daven remained inflexible and unwilling to compromise. When asked about
Daven’s motives for opposing relocation, the guardian ad litem testified that while she first
believed his opposition was reasonable, through further conversations she began to feel “it was
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less about ensuring that there was parenting time [with A.H.S.] and more about controlling
[Amber]. Specifically because, *** [Daven] never asked for, and still today is not asking for,
and never seemed to ask for any more [parenting time with A.H.S.] than every other weekend,”
where, in her experience, parents demanding time with their children typically want a more
significant amount of time. The guardian ad litem further testified that Daven had not been
able to provide a plan for parenting logistics when asked. The guardian ad litem found that
Daven’s insistence on maintaining an every-other-weekend parenting time schedule was
outweighed by Amber’s desire to provide a better quality of life for A.H.S. in Tuscaloosa,
Alabama with increased resources from her prospective employment there.
¶ 29 The guardian ad litem further testified that she spoke with the manager of the procurement
department at Mercedes-Benz and confirmed there were three positions available for Amber.
She further testified concerning the details of Amber’s offer from Mercedes-Benz. Although
the guardian ad litem testified that she had notes from her conversations with individuals at
Mercedes-Benz, she did not have them with her at the hearing and they were not admitted into
evidence.
¶ 30 Finally, the guardian ad litem testified that she believes it is important for Daven to be an
active parent and that he can be one even if Amber and A.H.S. relocate to Alabama. The
guardian ad litem indicated that Amber should financially support Daven’s efforts to engage
in parenting time with A.H.S., and that although it is a 20-hour drive from Chicago to
Tuscaloosa, Alabama there are roundtrip flights available for around $120.
¶ 31 At the close of evidence, the trial court requested that both parties submit written proposed
findings.
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¶ 32 On September 3, 2021, the trial court entered an order granting Amber’s June 9, 2021,
amended petition to relocate. In the trial court’s order, it addressed each of the relocation
factors enumerated in the Marriage Act (750 ILCS 5/609.2(g)). First, regarding “The
circumstances and reasons for the intended relocation” the trial court found Amber’s motives
for seeking relocation were genuine and that this factor weighed in favor of granting relocation.
The court found Amber was “seeking relocation to provide the best possible life for the minor
child,” which included “getting away from her Chicago neighborhood which has a high rate of
crime, violence, and poverty.” The trial court also found Amber credibly testified that “her
employment opportunities in Alabama at Mercedes is greater than her current employment
with Teletech wherein she earns $15.00 per hour or approximately $31,200 per year” but would
be able to immediately increase her salary to $52,000 annually, and receive “eligibility for
overtime, significant paid time off and vacation time, onsite curriculum-based childcare, and
other benefits including the ability to participate in a 401(k) with a matching program from her
employer, and health, dental, and vision insurance,” by accepting the offer with Mercedes-
Benz in Alabama. The trial court further found Amber credibly testified regarding the safety
and educational opportunities available to A.H.S. in Alabama.
¶ 33 The trial court found the second factor, “The reasons, if any, why a parent is objecting to
the intended relocation,” weighed slightly in favor Amber. Although the court credited
Daven’s testimony that he has been actively involved in A.H.S.’s life since birth, and that “He
wants to continue being a hands-on father who is able to watch and experience his child grow
older,” the court also found credible the testimony of the guardian ad litem, who testified that
Daven had been inflexible with many aspects of relocation and appeared to be trying to
“control” Amber rather than act in A.H.S.’s best interests. As to this factor, the court also
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considered uncontested evidence that Daven himself had relocated away from Chicago to
Champaign during the pendency of the relocation litigation.
¶ 34 Regarding the third factor, “The history and quality of each parent’s relationship with the
child,” the trial court found that the evidence supported the conclusion that Amber had been
A.H.S.’s primary caregiver since her birth, and also found Daven had consistently exercised
his parenting time. However, the trial court found the “evidence does not support that [Daven]
desires to be the parent with the majority of parenting time,” and cited the guardian ad litem’s
testimony that Daven had not been able to provide a plan for parenting logistics when asked.
¶ 35 As to the fourth and fifth factors, “The educational opportunities for the child at the existing
location and at the proposed new location” and “The presence or absence of extended family
at the existing location and at the proposed new location,” respectively, the trial court found
both factors to be neutral. While A.H.S. was too young to be in school at the time of trial, the
court found both Tuscaloosa and Chicago offer comparable educational opportunities. The trial
court further found that while both Amber and Daven have extended family in Chicago, they
both also have extended family out of state, with Amber’s father and brother residing in
Alabama and Daven’s father residing in Indiana.
¶ 36 The court found the sixth factor, “The anticipated impact of the relocation on the child,”
weighed in favor of relocation. Specifically, the court found:
“The Respondent’s ability to accept the position at Mercedes-Benz would directly
benefit the minor child. In addition to earning a substantially greater salary, the
Respondent would have significantly more paid time off and greater job flexibility
which would provide the Respondent with the ability to spend more quality time with
the minor child. The minor child would directly benefit by being placed into the onsite
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stem-curriculum-based childcare program at the Respondent’s work. Additionally, the
minor child would reside in a safer community while still having family support. As
the GAL testified, the cost of living in Tuscaloosa, Alabama is significantly more
affordable for the Respondent to be able to provide a home in a safe community for
herself and the minor child than in Chicago. The minor child would be able to attend
an acceptable school once of school age with a diverse group of peers, and the child
would be able to enjoy warm weather and outdoor activities year-round.”
¶ 37 The trial court also found the seventh factor, “Whether the court will be able to fashion a
reasonable allocation of parental responsibilities between all parents if the relocation occurs,”
weighed in favor of relocation. Here, the trial court found that the parties had been able to work
out an allocation schedule when Amber previously lived in Alabama and credited the guardian
ad litem’s testimony that “she researched transportation options and was able to determine that
there are reasonably priced flight options to and from Alabama.” The trial court also detailed
the parenting time schedule Amber proposed, which it deemed reasonable, and noted that
Amber offered to pay for three roundtrip flights for A.H.S. to visit Daven in Chicago annually.
The court also credited Amber’s testimony that she “plans travel to Chicago on additional
occasions with the minor child to visit with family and that she would work with [Daven] to
coordinate parenting time during any such travel to Chicago.”
¶ 38 The trial court did not consider the eighth factor, “The wishes of the child,” due to A.H.S.’s
young age.
¶ 39 As to the ninth and tenth factors, “Possible arrangements for the exercise of parental
responsibilities appropriate to the parents’ resources and circumstances and the developmental
level of the child,” and “Minimization of the impairment to a parent-child relationship caused
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by a parent’s relocation,” respectively, the trial court found these factors weighed in favor of
relocation. The trial court found the guardian ad litem had proposed a reasonable allocation
agreement that would minimize the impairment of Daven’s relationship with A.H.S. The court
found Amber’s desire to foster the relationship between Daven and A.H.S. was credible and
would also help to minimize any impairment of Daven’s relationship with her, and further
found that Amber’s increased income from accepting a new position with Mercedes-Benz
would increase her ability to allocate resources toward travel between Alabama and Chicago.
The trial court also noted that the evidence that Daven had moved to Champaign from Chicago
while A.H.S. resided there implied that he did not feel it was necessary to live within the same
city as A.H.S.
¶ 40 Finally, regarding the eleventh catch-all factor, “Any other relevant factors bearing on the
child’s best interests,” the trial court found that Daven’s “credibility in this matter with respect
to what is in the best interests of the minor child is questionable. This is mainly due to his being
inflexible with the [Amber’s] request to relocate to Alabama even though there are ample
factors to support that it would result in a better life for the minor child. Certainly, [Daven’s]
move to Champaign demonstrates that his reluctance to move outside of Chicago is not entirely
sincere.” The trial court further found that Daven’s denial of abuse of Amber was not credible
due to Amber’s testimony regarding the abuse and the photographs that corroborated it. The
court found that Daven’s “efforts to control and force [Amber] to remain living in Chicago
under the circumstances are not in the best interest of the minor child of the parties.”
¶ 41 On September 8, 2021, Daven filed a timely notice of appeal from the trial court’s
September 3, 2021, order granting Amber’s petition to relocate.
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¶ 42 ANALYSIS
¶ 43 On appeal, Daven argues that the trial court’s decision to grant Amber’s petition to relocate
was against the manifest weight of the evidence and must therefore be reversed. Amber
responds that Daven has failed to establish that the trial court’s decision was clearly, plainly,
and indisputably erroneous, and that the trial court’s order must accordingly be affirmed. After
carefully reviewing both the record and the trial court’s order, we find that there is no basis for
concluding that the trial court’s decision to grant Amber’s relocation petition was so “clearly
against the manifest weight of the evidence” that “it appears that a manifest injustice has
occurred,” and therefore affirm the order of the trial court. In re Marriage of Fatkin, 2019 IL
123602, ¶ 34.
¶ 44 Initially, we note that we have jurisdiction to consider Daven’s appeal pursuant to Illinois
Supreme Court Rule 304(b)(6) which governs appeals from an order allocating or modifying
parental responsibilities pursuant to the Marriage Act (750 ILCS 5/101 et seq.) and Rule
311(a), which permits the expedited disposition of an appeal from an order allowing the
relocation of an unemancipated minor such as A.H.S.
¶ 45 In adjudicating a relocation petition, a trial court’s paramount consideration is the best
interests of the child. 750 ILCS 5/609.2(g). In this context, our supreme court has explained
that a best interests determination “cannot be reduced to a simple bright-line test” and that a
ruling on the best interests of a child “must be made on a case-by-case basis, depending, to a
great extent, upon the circumstances of each case.” In re Marriage of Eckert, 119 Ill. 2d 316,
326 (1988). Our supreme court has also cautioned that “[a] trial court’s determination of what
is in the best interests of the child should not be reversed unless it is clearly against the manifest
weight of the evidence and it appears that a manifest injustice has occurred.” Eckert, 119 Ill.
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2d at 328. “A judgment is against the manifest weight of the evidence only when the opposite
conclusion is clearly apparent.” In re Parentage of J.W., 2013 IL 114817, ¶ 55. “In determining
whether a judgment is contrary to the manifest weight of the evidence, the reviewing court
views the evidence in the light most favorable to the appellee. [Citation.] Where the evidence
permits multiple reasonable inferences, the reviewing court will accept those inferences that
support the court’s order. [Citation.]” In re Marriage of Bates, 212 Ill. 2d 489, 516 (2004).
Such deference is appropriate because “ ‘[t]he trier of fact had significant opportunity to
observe both parents and the child and, thus, is able to assess and evaluate their temperaments,
personalities, and capabilities.’ ” Eckert, 119 Ill. 2d at 330, (quoting Gallagher v. Gallagher,
60 Ill. App. 3d 26, 31 (1978)). Accordingly, “ ‘[t]he presumption in favor of the result reached
by the trial court is always strong and compelling in this type of case.’ ” Eckert, 119 Ill. 2d at
330 (quoting Gallagher, 60 Ill. App. 3d at 31-32).
¶ 46 Section 609.2(f) of the Marriage Act applies where, as here, the parties cannot agree to a
relocation. 750 ILCS 5/609.2(f). As noted, section 609.2(g) of the Marriage Act sets forth the
standards the trial court must use in determining the child’s best interests in a relocation
request:
“The court shall modify the parenting plan or allocation judgment in accordance with the
child’s best interests. The court shall consider the following factors:
(1) the circumstances and reasons for the intended relocation;
(2) the reasons, if any, why a parent is objecting to the intended relocation;
(3) the history and quality of each parent’s relationship with the child and
specifically whether a parent has substantially failed or refused to exercise the
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parental responsibilities allocated to him or her under the parenting plan or
allocation judgment;
(4) the educational opportunities for the child at the existing location and at
the proposed new location;
(5) the presence or absence of extended family at the existing location and at
the proposed new location;
(6) the anticipated impact of the relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of
parental responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child's maturity and ability
to express reasoned and independent preferences as to relocation;
(9) possible arrangements for the exercise of parental responsibilities
appropriate to the parents’ resources and circumstances and the developmental
level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a
parent’s relocation; and
(11) any other relevant factors bearing on the child’s best interests.” 750 ILCS
5/609.2(g).
¶ 47 Here, as noted, after weighing these factors and detailing in a written order which evidence
supported its finding on each factor, the trial court determined that Amber had established by
a preponderance of the evidence that relocation was in A.H.S.’s best interests and granted
Amber’s petition. On appellate review, this court “does not reweigh the competing
considerations. Rather, it reviews the trial court’s decision deferentially.” In re Marriage of
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Kavchak, 2018 IL App (2d) 170852, ¶ 65. Accordingly, we find Daven’s reliance on numerous
cases in which our appellate courts have affirmed the denial of a petition to relocate to be
misplaced. In those cases, the appellate court deferentially reviewed the trial court’s treatment
of the evidence and balance of the statutory factors and left in place, rather than disturbed, the
trial court’s decision. The fact that a trial court in a different case, assessing a different set of
facts, reached a conclusion with which an appellate court agreed does not mean that a “manifest
injustice” has occurred wherever a trial court reaches a contrary conclusion. In re Marriage of
Fatkin, 2019 IL 123602, ¶ 34 (“a trial court’s determination of what is in the best interest of
the child should not be reversed unless *** it appears a manifest injustice has occurred***.”).
¶ 48 Moreover, the three cases cited by Daven in which the appellate court reversed the trial
court’s grant of a petition to relocate reinforce, rather than undermine, this court’s conclusion
that a reversal is not appropriate in the case at bar. First, in In re Marriage of Davis, the
appellate court accepted the trial court’s conclusion that the mother’s motive in seeking
relocation from Illinois to Georgia was to be closer to a man to whom she was engaged that
resided there. 229 Ill. App. 3d 653, 661 (1992). There, the mother introduced letters from
prospective employers regarding potential employment in Georgia, but the offers were
contingent on factors outside of the mother’s control, including obtaining a license in the state,
and the appellate court further found it was “apparent from [the mother’s] testimony that she
had not sought employment *** in Illinois.” In re Marriage of Davis, 229 Ill. App. 3d at 662.
¶ 49 The appellate court also found significant the fact that the mother had failed to provide any
evidence of what her earnings might be in Georgia and found that her testimony regarding her
job prospects in Georgia cast doubt on her testimony that she would be able to spend more
time with her minor daughter there, because her potential new employment would require her
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to work full-time, while her current job in Illinois was only part-time. In re Marriage of Davis,
229 Ill. App. 3d at 663. Finally, the appellate court considered the testimony of the minor’s
father, the minor’s two brothers, ages thirteen and fourteen, and the minor herself, age six. The
appellate court observed that the minor had a close relationship with her father and brothers,
none of whom wanted the minor to relocate to Georgia, and the minor herself “indicated in her
testimony that she did not want to move.” In re Marriage of Davis, 229 Ill. App. 3d at 664.
Based on the foregoing, the appellate court found “The evidence placed before the trial court
by petitioner in support of her desired move really boils down to her desire to move to Georgia
to be with her new husband,” and found such a desire, standing alone, was insufficient to
warrant removal when weighed against the evidence in support of the countervailing factors.
In re Marriage of Davis, 229 Ill. App. 3d at 665.
¶ 50 By contrast here, the trial court heard testimony from both Amber and the guardian ad litem
that Amber had an open employment opportunity in Alabama that would earn her over 60%
more than her earnings in Illinois that was not contingent on any factors beyond Amber’s
ability to relocate. Both also testified that Amber had extensively sought employment in
Chicago, but like Daven, had not received any offers. Moreover, in the case at bar, A.H.S.’s
wishes were a neutral factor due to her age, whereas in In re Marriage of Davis, the court found
significant the fact that it appeared the minor herself did not wish to relocate. See In re
Marriage of Davis, 229 Ill. App. 3d at 664. Contrary to Daven’s position, the evidence here
does not suggest that Amber’s desire to relocate “boils down” to a personal desire of Amber’s,
but rather, as the guardian ad litem testified, stems from a desire to enhance A.H.S.’s quality
of life by removing her from an unsafe neighborhood and providing her with greater material
resources in a lower cost of living environment near family.
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¶ 51 Second, in In re Marriage of Johnson, the appellate court considered a case in which the
evidence adduced at trial established that “the only benefit shown by removal” arose from the
mother’s “improved marital relationship,” where the record demonstrated there would be no
change to mother’s salary or capacity to engage with the minor upon relocation. 277 Ill. App.
3d 675, 681 (1996). The appellate court found this minimal indirect benefit to the minor child,
standing alone, was so far outweighed by the impairment to the father’s visitation rights that
the trial court’s relocation order was “clearly against the manifest weight of the evidence.” In
re Marriage of Johnson, 277 Ill. App. 3d at 683. In support of its conclusion, the appellate
court noted that the trial court had granted removal in spite of its recognition that the father
had “extraordinary involvement” in the life of his daughter, having spent 90 days with her in
six months preceding trial, or about 50% of the time. In re Marriage of Johnson, 277 Ill. App.
3d at 682. Indeed, in the case at bar, the guardian ad litem testified that she might have
provided a different recommendation if Daven had sought or demonstrated a capacity to
exercise more parenting time with A.H.S. than three days every two weeks, or roughly 18 days
every six months. By Daven’s own admission, he did not. Moreover, as noted, the trial court
here found Amber’s salary would increase upon relocation and that would provide a direct
benefit to A.H.S.
¶ 52 Third, in In re Marriage of Krivi, the appellate court reversed the trial court’s grant of the
mother’s petition to relocate after finding the trial court’s conclusions “regarding petitioner’s
motivation for removing the children from their home in Mt. Vernon [were] against the
manifest weight of the evidence.” 283 Ill. App. 3d 772, 776 (1996). There, the trial court found
the mother’s motivation for relocating was an incident in which the father physically abused
the mother. In re Marriage of Krivi, 283 Ill. App. 3d at 776. The appellate court found this
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finding was unsupported by the evidence, because the mother stayed in the home for five
months following the alleged incident of abuse and had in fact testified that she sought
relocation to Minnesota because her mother, brother, and sister lived there. In re Marriage of
Krivi, 283 Ill. App. 3d at 776. Here again, the appellate court found that the mother’s desire to
move out of state, standing alone, was insufficient to warrant removal where the father had a
demonstrated close relationship with his children and there was “no evidence to suggest that
[the father’s] motives [were] based on anything other than a desire to maintain close contact
with his children.” In re Marriage of Krivi, 283 Ill. App. 3d at 777. By contrast here, the trial
court found Amber’s motive in seeking relocation was to provide an enhanced quality of life
for herself and A.H.S., while Daven’s motive in opposing relocation was, at least in part, to
control Amber, as demonstrated by his pattern of abuse, his inflexibility, and his own move
122 miles away from Chicago while A.H.S. and Amber resided there at his behest.
¶ 53 Daven’s argument on appeal rests principally on his assertion that Amber’s testimony and
that of the guardian ad litem was not credible, while Daven’s testimony, in turn, was credible.
The trial court disagreed. It is not the role of the appellate court to second-guess the credibility
determinations of the finder of fact. See In re Marriage of Georgiades, 2021 IL App (2d)
200677, ¶ 5 (“Credibility determinations are within the sole purview of the trier of fact.”); In
re Parentage of I.I., 2016 IL App (1st) 160071, ¶ 55 (“[W]e will not reweigh [a] credibility
determination on appeal.”); Vician v. Vician, 2016 IL App (2d) 160022, ¶ 29 (“We give great
deference to the trial court’s credibility determinations, and we will not substitute our judgment
for that of the trial court.”). The trial court set forth extensive findings regarding how A.H.S.
would benefit from the move to Alabama based on testimony and evidence it deemed credible.
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There is accordingly no basis to conclude that the trial court’s September 3, 2021, order
granting relocation was against the manifest weight of the evidence.
¶ 54 CONCLUSION
¶ 55 For the foregoing reasons, we affirm the decision of the trial court.
¶ 56 Affirmed.
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2022 IL App (1st) 1220074
______________________________________________________________________________
Decisions Under Review: Appeal from the Circuit Court of Cook County, No. 2020 D
079351; the Hon. William Yu, Judge, presiding.
______________________________________________________________________________
Attorneys Danielle A. Pinkston of Pinkston Law Group, P.C. of Chicago, for
for appellant.
Appellant:
______________________________________________________________________________
Attorneys John Kay and Olga Allen of Hurst, Robin & Kay, LLC of Chicago,
for for appellee.
Appellee:
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