Illinois Supreme Ct. Reverses The Fatkin Relocation Case

Anderson & Boback Family Law
7 min readJan 7, 2020


A while ago, I wrote a blog about child relocation cases. I analyzed and cited the most recent cases that had come down from the Appellate Court and discussed the importance of certain findings by the court in each of those cases. The analysis was supposed to help litigants and even attorneys look at the facts in their own case and plan accordingly. Then one of those cases, In re Marriage of Fatkin, (2019 IL 123602) was reversed by the Illinois Supreme Court. An astute reader of my blog suggested that I might want to revisit the relocation blog in light of that reversal. So here we are.

In Fatkin, the trial court made a ruling that the Appellate court reversed. Then the Illinois Supreme Court reversed the Appellate court. In essence, with the Supreme Court’s ruling, the trial court’s ruling was upheld allowing the father to move from Illinois to Virginia with the couple’s children.

Fatkin Relocation Case History

For those unaware of the Fatkin decision, it was a relocation case. The father, in that case, had the primary time with the parties’ two children and he wanted to move out of state. The mother objected and a trial was conducted about whether it was in the children’s best interests to move out of state. The trial court agreed with the father and allowed the kids to move. On appeal, however, the Appellate Court disagreed and ordered that the children remain in the State of Illinois. The father appealed that ruling and the Illinois Supreme Court reversed the Appellate Court and the trial judge’s ruling allowing the children to move was essentially approved. The kids moved with their father out of state. It is interesting to note, however, that the Illinois Supreme Court did not reverse the Appellate Court because it felt that the trial court had ruled correctly.

The Illinois Supreme Court based its reversal on the Appellate Court’s review of the evidence and/or its findings, and ruled that the Appellate Court had essentially overstepped its boundaries. What the Supreme Court took issue with was the Appellate Court’s refusal or unwillingness to apply the right standard to the appellate review. The Appellate Court in Fatkin was charged (in relocation cases) with essentially applying the wrong standard of review.

Understanding the Responsibilities of the Trial Court

Each court has its own responsibilities. The trial court has to follow the precedent of the courts above it, contrary to the recent opinion of sitting Judge Else in DuPage. The trial court is required to do that, and when it doesn’t, the reviewing courts have some harsh words for the trial court judge and will reverse the ruling. The trial court judge is also charged with reviewing the evidence before it and assessing the credibility of the witnesses that take the stand in trials before the court. It is improper for the Appellate court to overstep its bounds and retry the case, or to step into the trial court’s shoes. The trial court is the best indicator of truthfulness in witnesses since they physically see the witnesses. The Appellate Court and any higher court rely strictly on the evidence, court pleadings, orders, and the record. They never see the witnesses. The trial court’s job is to assess the truthfulness of the witnesses for that reason. The Illinois Supreme Court found that the Appellate Court had essentially tried to be the trial judge in the Fatkin case and it was improper.

Appellate Court’s Role in a Relocation or Removal Case

The Illinois Supreme Court stated that the Appellate court wasn’t supposed to “re-try the case” and decide the case as if it were the trial court. That was the trial court’s job. The Appellate court in a removal case had to decide if any reasonable person would have ruled as the trial court in Fatkin did. The legal standard is “against the manifest weight of the evidence.” The Appellate court is not supposed to reverse the trial court unless the trial court’s ruling was against the manifest weight of the evidence.

Fatkin Case Background

In Fatkin, the Illinois Supreme Court found that the Appellate court made no attempt to apply the applicable standard of review. The Appellate court reweighed the evidence and came out with a different result than the trial court did. But that is not what the Appellate Court is supposed to do. The Appellate Court is not supposed to be another trial court, they are only to determine if the trial court reached a decision that was against the manifest weight of the evidence, and that isn’t what they did. So the Illinois Supreme Court reversed the Appellate court.

People now believe that the trial court’s ruling was correct (based on the fact that the Supreme Court agreed with it). That the analysis of the Appellate Court was wrong. But the Illinois Supreme Court isn’t stating that. The Illinois Supreme Court isn’t saying that the conclusion that the Appellate Court found was necessarily wrong, just that that wasn’t their role. Fatkin doesn’t really help us now since it is just the opinion of one trial judge.

I personally didn’t like the Fatkin case and I was one of the attorneys applauding its reversal. Now I’m stuck with it. But it is important to note (and to argue) in other removal cases, that the Illinois Supreme Court never weighed in and said that the trial court properly ruled in its case. It reversed for other reasons.

In Fatkin, the father had the majority of the parenting time with the kids and the mother was an involved mother. She paid support and she spent a lot of time with her kids. The father, a licensed dental hygienist, wanted to move out of state to go live by his parents. My reading of the case showed that the father engaged in behavior that alienated the oldest child from the mother.

Everything I counsel my clients on to prevent removal (relocation) was being exhibited in the father’s behavior in this case. So when the Appellate Court reversed the trial court’s decision to let the father go, I was there patting myself on the back since I counsel my clients not to act like the father in Fatkin and now had proof that my way was correct. “See, this is exactly the wrong behavior to engage in if you want to remove your children from the state.” I counsel my clients — don’t alienate your children from the non-custodial parent.

Preventing the Relocation of Your Children

If you want to prevent the relocation of your children do:

  • Facilitate a relationship between the other parent and the kids
  • If you are the non-custodial parent, make sure you are helping out
  • Pay for your children
  • Spend time with your children
  • Do all you can to be an active parent

And when Fatkin was reversed, I had a case in hand to make my clients act right (if they were having trouble doing that) and a case with more or less of a road map to ensure getting removal, or a road map used in the alternative to prevent it. Now we are looking at Fatkin as an Illinois Supreme court case condoning this father’s bad behavior. Which I hate.

Takeaways from the Fatkin’s Petition to Relocate

Of course, Fatkin can still be used in the manner I use it. I can sill point to Fatkin to show parents how acting badly can result in a denial of their petition to relocate. Of course, it is just my opinion that the father in Fatkin didn’t act right. But when the parties’ teenage son didn’t approve of his mother’s lifestyle because she’d started dating, and then didn’t want to see her, I smelled a rat and that rat was the father saying things about his ex-wife that his son heard. And when the father allows his son to come home after school and reject the mother’s parenting time after school, I smell a rat.

I felt sorry for the mother in the Fatkin case. She did everything right and still, her children will be moved across state lines where she’ll no longer get to mother them like a mother should be able to. I don’t like it when people act right and still lose. I don’t like the Illinois Supreme Court’s ruling in this case and I wish the Appellate Court wasn’t reversed. But it is a wake-up call too. Each court has a role and it is important for the courts to maintain that role. I suspect that the Appellate Court smelled a rat just like I did and tried to right the wrong done to the mother in Fatkin. It just wasn’t their role to do that.

Relocation cases are difficult. The judges have a lot of factors to weigh, and the combination of the multiple factors are never the same in each case. If you’re facing the complexities of child relocation and custody laws require sound legal input and advice. Contact Anderson & Boback today if you want to learn more about a petition for relocation, child relocation law or the Fatkin case.




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