In re MARRIAGE OF DANIELLE FATKIN, Petitioner-Appellant, and TODD FATKIN, Respondent-Appellee.
from the Circuit Court of the 9th Judicial Circuit, Knox
County, Illinois Circuit No. 14-D-96 Honorable Paul L.
Mangieri, Judge, presiding.
PRESIDING JUSTICE CARTER delivered the judgment of the court,
with opinion. Justice Wright concurred in the judgment and
opinion. Justice Schmidt dissented, with opinion.
CARTER, PRESIDING JUSTICE
1 As a result of the dissolution of their marriage, the
parties, Danielle Fatkin and Todd Fatkin, were awarded joint
custody of their two minor children. Todd subsequently filed
a postdissolution petition for leave to relocate with the
minors out of the state of Illinois. The trial court granted
the postdissolution petition for relocation. Danielle
appealed. We reverse and remand for further proceedings.
3 Danielle and Todd were married on August 4, 2004. They
subsequently had two children-a son born in 2004 and a
daughter born in 2010.
4 Prior to the birth of their daughter, Danielle and Todd
moved to East Galesburg, Illinois, in August 2008, where they
resided together until their separation in June 2014. The
trial court entered a final order on custody and visitation
on July 16, 2015, and subsequently entered a dissolution of
marriage judgment on June 10, 2016. Danielle and Todd were
awarded joint custody of the minors, with "primary
physical placement" with Todd. The parties were ordered
to consult with each other in making significant decisions
regarding the children related to medical, educational,
religious, and extracurricular activities, with Todd
designated as the parent to make decisions for the children
if the parties were not able to come to a timely agreement.
Danielle was given parenting time of overnight visits of 6
out of every 14 days (every Monday and Tuesday night and
every other Saturday and Sunday night), plus time after
school on Wednesdays, Thursdays, and Fridays until Todd got
off of work. The parties were to alternate one-week periods
of parenting time during summer break.
5 On February 10, 2017, Todd filed a notice of his intent to
relocate with the children to live with his parents in
Virginia Beach, Virginia. Danielle filed an objection to the
relocation. On June 5, 2017, Todd filed a petition for leave
to relocate with the minors to Virginia Beach pursuant to
section 609.2 of the Illinois Marriage and Dissolution of
Marriage Act (Marriage Act) (750 ILCS 5/609.2 (West 2016)).
6 Over the course of a three-day hearing on Todd's
petition to relocate, both parties testified and presented
evidence and the trial court conducted an in camera
interview with the parties' 12-year-old son. The
parties' daughter was six years old at the time of the
hearing and did not participate in the proceedings.
7 The evidence showed that Todd was 48 years old and rented
the home where the parties formerly lived together during
their marriage in East Galesburg, Knox County, Illinois. Todd
had a Bachelor of Arts degree in fine arts and a dental
hygienist associate's degree. He was licensed as a dental
hygienist in both Virginia and Illinois. He also had a
Montessori teaching certificate. From 2011 to 2015, Todd
worked for a dental practice in Peoria, Illinois, earning
$50, 000 per year. Todd quit working for Aspen Dental because
he had a job offer from a dentist's office in Moline,
Illinois, making more money and he had "some major
issues" with the ethics of the Peoria dental practice.
8 In late 2015, after working at the dentist office in Moline
for four months, Todd's employment was terminated. Todd
was subsequently denied unemployment benefits because he had
been terminated due to misconduct. Todd applied to three
local dentist offices near his home. He would not apply for
dental jobs in bigger cities (i.e., Peoria or the
Quad Cities) because the commute would be over an hour and
that was "not the quality of life" that he wanted.
He did not want his kids "not to be able to see
[him]" if he undertook that kind of a commute.
9 In April 2016, Todd began employment with City of Galesburg
as a community service officer to enforce city ordinances for
up to 1000 hours per year, at the rate of $12.00 per hour,
with no benefits, for an annual income of $12, 000 per year.
Todd worked from April 2016 until the 1000 hours of work was
exhausted in late October or early November. Todd applied for
and received unemployment compensation from November until
the start of the next employment cycle in April. He also
received $508 per month in child support from Danielle ($6096
10 Danielle was 41 years old and lived within two miles of
Todd's residence in a home that she had purchased.
Danielle was employed as a tenure track professor of history
and worked during the academic year from 8:30 a.m. until 2:30
p.m. She was under contract until 2020 with her current
employer, and she did not intend to leave the area. Danielle
regularly exercised her parenting time. Danielle had been the
soccer coach for both children (for the parties' son for
one season and the parties' daughter for one season),
volunteered in their classrooms, had been the room mother for
the children's classes, and was the group leader for the
parties' daughter's 4-H club group. Danielle was
primarily responsible for scheduling the children's
medical appointments, with Todd also involved. Danielle
volunteered weekly in the classroom of the parties'
daughter, attended parent-teacher conferences, and kept in
regular contact with the children's teachers. She also
provided enrichment activities related to archeology to share
her expertise in her field of work at the children's
school. Danielle and her children enjoyed doing many
activities together, such as baking, running, biking, hiking,
camping, taking road trips, reading, and horseback riding.
11 For the 2016-17 school year, Danielle had seen the
children every day after school until spring 2017 when Todd
told the parties' 12-year-old son that he was allowed to
go directly home after school on Wednesdays, Thursdays, and
Fridays because his son wanted to go home instead of going
with Danielle. Todd told Danielle not to pick up their son on
those days. Todd testified that he also placed their daughter
in an after-school day care program on those days because she
did not want to go Danielle's home after school. Danielle
testified that for the 2017-18 school year, Danielle's
teaching schedule changed so she could no longer get her
daughter from school on Wednesdays or Fridays, but she still
picked her daughter up on Thursdays until Todd got home from
work. Danielle felt that her son would be better off spending
the time with her after school on Todd's overnight
weekdays because she wanted to spend time with him, he seemed
too young to be by himself after school, and his grades were
beginning to decline. In the 2016-17 academic year, the
parties' son was getting Bs, Cs, and Ds, and in the
current year of 2017-18 he received a B, a D, and two Fs on
his midterm report card. The parties' son had expressed
concerns to Danielle about being bullied in school where he
had been called names ("girl" and "Jew")
and was shamed for not playing football.
12 The children were both involved in extracurricular
activities. The parties' son was currently in soccer,
jazz band, and the 4-H club. The parties' daughter was in
gymnastics, soccer, and the 4-H club. Both children had many
close friends in the area.
13 Todd wanted to relocate with the children to live in his
parents' home in Virginia Beach.Todd had been raised in
Virginia Beach until he and his parents had moved during his
last year of high school. Todd's parents, who were in
their mid-sixties, had returned to live in Virginia Beach
some years prior. Todd's father was in good health, but
his mother had stage 5 renal failure and was on a waitlist to
receive a kidney transplant. If she did not receive a kidney,
Todd did not know how much longer she would live. Todd
testified that he and the children would live with his
parents in their four or five bedroom home, which was
"meticulously kept" by his mother. Todd's
parents would not require Todd to pay rent and his day care
arrangement for the children would be his parents, although
his mother was not in good health and his father had to
recently returned to work to pay for his mother's
medication. Todd also testified that he had childhood friends
in Virginia Beach that he could call if he needed someone to
watch the children. One of the reasons Todd wanted to
relocate to Virginia was because his mother was not in good
health and they did not know how much longer she had to live.
14 Todd testified that he was familiar with the schools in
Virginia Beach. Todd explained the school system in Virginia
Beach was "a way better school system" with
extracurricular activities that are "enormous"
compared to those in Knox County, Illinois. Todd explained
the teen sports activities offered in Virginia Beach were
"far, far greater" and the children would have
"much, much better opportunities within the
education." Todd testified to the names of the schools
in Virginia Beach the children would attend. Todd testified
that the school system in Virginia Beach was "enormously
diverse" and the lack of diversity was one of the things
that "saddened" him about the children's school
system in Illinois. Todd testified that the band program in
Virginia Beach was "top notch" and better than the
band program at the children's school in Illinois. He
indicated the East Coast Surfing Championships held in
Virginia Beach was one of his own childhood "go-tos,
" which he had surfed in as a child, from the third
grade through high school. He explained that, if there was a
multi-day festival, there were ...