DCBABRIEF - JUSTICE MICHAEL BURKE CHRIS KACHIROUBAS JOINS DCBA IN HONORING FORMER CIRCUIT COURT CLERK - DUPAGE COUNTY BAR ASSOCIATION
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DCBA Brief
The Journal of the DuPage County Bar Association
Volume 33, Issue 8 | May/June 2021
Justice Michael Burke
Joins DCBA in honoring former Circuit Court Clerk
Chris Kachiroubas
With this year’s Liberty Bell Award
www.dcbabrief.org
Volume 33, Issue 8
May/June 2021
Table of Contents
Dexter J. Evans
Chief Judge Kenneth Popejoy
Editor-in-Chief
Jordan M. Sartell
Associate Editor
Editorial Board
Anthony Abear
3 Editor’s Message Jolianne W. Alexander
Brian M. Dougherty
Alex Fawell
32 ISBA Update Anne C. Fung
5 President’s Message - By Kent A. Gaertner Raleigh D. Kalbfleisch
Rachel E. Legorreta
34 The State of The Courthouse Christopher J. Maurer
After 2020 and COVID-19…The Jane E. Nagle
Articles
Reopening…The Reawakening! Joseph K. Nichele
- By Chief Judge Kenneth Popejoy Azam Nizamuddin
as presented to members at the John J. Pcolinski, Jr.
Jay M. Reese
DCBA Mega Meeting March 5th
Arthur W. Rummler
James L. Ryan
6 Fair Use: What Does It Really Mean? 39 Liberty Bell Awarded to Former Marie Sarantakis
- By Amy Cohen Heller Circuit Court Clerk, Chris David N. Schaffer
Kachiroubas Leah D. Setzen
10 Know When to Say When: Illinois Supreme Ct. Rule 375(b) - By Ted A. Donner Edward R. Sherman
Hilary E. Wild
and the Frivolous Appeal
50 Legal Aid Update
- By Andrew Leuchtmann Jacki L. Hamler
- By Cecilia Najera
Publication Production
14 The Uncertainty Of Relocation – Where Are We Going? 53 2021 Law Day Awards Ceremony
- By Jessica L. Defino and Melissa L. Marin Ross Creative Works
and Luncheon
Graphic Design
20 Special Education Law: A General Overview 55 Legal Resources REP3.com
- By Nina Hennessy Cover Photography
56 Where to Be with DCBA
By Robert Rupp Mittera
26 Illinois Law Update
Printing
- By Editors Leah Setzen and Jim Ryan
DCBA Brief May/June 2021 1ARTICLES
From the Editor
What a boring year it was
By Dexter J. Evans
Obviously, I am being facetious. This was an her and wishing her the best as she gets
incredibly interesting year. We faced many some much-needed rest and relaxation…
difficult hurdles, but I am proud to say that especially from us. Debra Kennedy will
the extraordinary Editorial Board confront- be taking over for Jacki and she is talented,
ed each and every one of these hurdles and hard-working, and I have no doubt that she Dexter J. Evans is an equity partner
brought the membership the same content will continue Jacki’s great legacy with the at Woodruff Johnson & Evans
that is expected, albeit with a lot less news and DCBA Brief. where he focuses his practice on
events. Where to be? Mostly at home.
personal injury litigation. Dexter
is the Editor-in-Chief of the DCBA
To the rest of board, thank you for all of your
Brief and an active member of the
Every single one of our meetings was conduct- contributions, hard work, and advice. I could DuPage County Bar Association. He
ed by zoom in my year as editor. Quite frankly, not have done it without you. Jordan Sartell is a member of the Million Dollar
it works very well. When you are doing these will be the new Editor-in-Chief and he will be Advocates Forum. He earned his
meetings in-person, there is no mute button a tremendous asset. He has some ideas on how J.D. from Northern Illinois College
you can hit. On zoom, you can mute everyone to make the DCBA Brief even better and some of Law where he graduated magna
and make them raise their hands. Oh, what of that will likely include making the DCBA cum laude in 2005.
power that is. Brief more accessible online with more, timelier
case law updates.
We also faced budgetary challenges which is
true across the board for the entire DCBA. In this issue, we wish to thank our two
We met those challenges as well without in- article editors, Alex Fawell and David
terruption of the delivery of the DCBA Brief. Schaffer along with case law editors, Jim
We will continue to meet each and every chal- Ryan and Leah Setzen. We also thank our
lenge that we are faced with because we have article authors, Amy Cohen Heller, Andrew
incredibly talented and intelligent people on Leuchtmann, Jessica Defino and Melissa
this board. Some veterans, some rookies. We Marin, and Nina Hennessy. Also, special
anticipate having at least 3 new members join- thanks to Ted Donner.
ing the board this coming year.
In closing, I hope everyone enjoyed the last 12
Sadly, this is Jacki Hamler’s last issue of months of the DCBA Brief and received the
the DCBA Brief. What can I say about Jac- quality content they have always expected. As
ki? She was an unbelievable asset to the things get closer to whatever new normal we
DCBA Brief. You truly do not understand will face, expect the DCBA Brief to become an
her value until you are Editor-in-Chief. even better publication both by the copy you
She made it possible to deliver the best receive in the mail and the one you case access
version of this award-winning publication online. Be safe, be well, and thank you for your
for 20 years. Please join me in thanking support! Peace!
2 DCBA Brief May/June 2021President’s Message
What a Ride!
By Wendy M. Musielak
A year ago, I was sitting here ready to write my take your moment, be disappointed. Express it
Installation Speech. The vision I had started and let yourself heal. Ignoring the disappoint-
with had dramatically changed and I needed ment does not let you move on. It keeps build-
to start anew. I spent hours trying to decide ing up and then you dwell on it. Dwelling on
what to say. Last month, during my DCBA it does not help you heal, but facing it head
Brief column, I focused on the pivoting that on and realizing that you are sad about some-
we all have done this year and said that I had thing is okay. It is healthy. DCBA President, Wendy M.
hoped by my last column, I would be able to Musielak is a Partner at Esp
share with you what I learned this year. Well, I have learned acceptance, but not in the Kreuzer Cores LLP in Wheaton,
as I write this, my year is not fully over, but be- sense of settling; rather, acceptance that the where she concentrates
cause the press waits for no one, it is time for unplanned can be great. We did not plan that
her practice in family law.
She graduated with highest
me to reflect on my year and what I learned. this year would be in the middle of a pandem-
honors from DePaul University
ic. We did not plan that we would not be able College of Commerce with her
One of the lessons I learned was patience. to gather in person. We did not plan for any Bachelor’s Degree in Finance
With things ever-changing, I had to accept of this – how could we, we have never faced and Management in 1999 and
that my planning may not work out and that anything like this before. But through pure earned her J.D. from DePaul
I needed to be flexible with what I did as an determination, we succeeded as individu- University’s College of Law
individual and what we did as an organization. als and as an organization. We did the best in 2003. In 2015, Wendy was
It was not easy. I was frustrated at times and that we could and as it turns out that best
admitted to practice before the
United States Supreme Court.
disappointed at times. But then I would step was great. We worked together and accom-
Wendy was recognized as the
back. In stepping back, I realized I needed to plished new goals that kept us connected and DCBA Lawyer of the Year in
take a deep breath and not overthink things. I informed and we learned. 2013.
know – you know me, and I know I kept over-
thinking, but by the very nature of our times, I have learned to lean on others. We do not
I found that it was taking too much energy to survive as an island. There were a couple of
worry. I needed to let things happen and real- times during the shelter in place or when I was
ize things would work out for the best. quarantining that I recognized how hard it is
to be alone. We thrive on being around oth-
But, I also learned it is okay to be disappoint- er people. When you are suddenly faced with
ed when things do not go the way you want. being “alone,” it changes your perspective. It
Just because you accept things changing, it makes you appreciate those around you and
does not mean that you have to like it. You can makes you realize that asking for help is not a
feel that disappointment when something you sign of weakness, but of strength. We are bet-
dreamed of does not happen. When you have ter when we work together. Whether we are
to accept a different plan and a different path, physically together or (Continued on page 4)
DCBA Brief May/June 2021 3President’s Message
(Continued from page 3)
The DCBA BRIEF is a publication of the working from afar, a team is stronger than an individual.
DuPage County Bar Association
126 South County Farm Road
Embrace those around you and ask for help when you need
Wheaton Illinois 60187 it. People are generally good and want to help one another.
(630) 653-7779 Do not struggle alone when you can overcome things with the
support of others.
DCBA Brief welcomes members’ feedback. This leads me to my greatest lesson. I learned how blessed I
Please send any Letters to the Editor to the attention
am to be surrounded by such amazing people. My family, my
of Dexter Evans, at email@dcbabrief.org
friends and my colleagues supported me throughout these ev-
er-changing times. They picked me up when I was down. They
helped me refocus and move forward. I could have easily be-
Wendy M. Musielak Aaron E. Ruswick
President Secretary/Treasurer come stuck this year and thrown my hands up in the air, but in-
stead my support system picked me up and moved me forward.
Kiley M. Whitty DeAnna C. Rosinski
President-Elect Assist. Treasurer So, thank you to all of you. I could not have handled this year
without you. I am a better person because of you and your sup-
Angel M. Traub Directors:
port. I will never fully be able to thank you all for what you did,
2nd Vice President Mark S. Bishop
Patrick L. Edgerton but know I appreciate each of YOU and who you are. Together
Richard J. Veenstra James S. Harkness We Are Stronger!
3rd Vice President Rebecca A. Krawczykowski
Ronald D. Menna, Jr.
Karen R. Mills
Stacey A. McCullough
John J. Pcolinski, Jr.
Immediate Past President
Jay M. Reese
Arthur W. Rummler
James J. Laraia Alissa C. Verson
General Counsel Amanda M. Zannoni
Jennifer L. Friedland Kent A. Gaertner
Assoc. Gen’l Counsel ISBA Liaison
Robert T. Rupp
Executive Director
The DCBA Brief is the Journal of the DuPage County Bar Association
(“DCBA”). Unless otherwise stated, all content herein is the property of
the DCBA and may not be reprinted in whole or in part without the express
permission of the DCBA. ©2021 DCBA. Opinions and positions expressed
in articles appearing in the DCBA Brief are those of the authors and not
necessarily those of the DCBA or any of its members. Neither the authors
nor the publisher are rendering legal or other professional advice. This
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4 DCBA Brief May/June 20216 Fair Use: What Does It Really Mean?
- By Amy Cohen Heller
10 Know When to Say When: Illinois Supreme Ct. Rule 375(b)
Articles
and the Frivolous Appeal
- By Andrew Leuchtmann
14 The Uncertainty Of Relocation – Where Are We Going?
- By Jessica L. Defino and Melissa L. Marin
20 Special Education Law: A General Overview
- By Nina Hennessy
26 Illinois Law Update
- By Editors Leah Setzen and Jim Ryan
Article Editors
Alex Fawell Dave Schaffer
Alex Fawell graduated from the University of Wisconsin in 2009 and David Schaffer. A Fellow of both the American and International
received his JD from the John Marshall Law School in 2015. He practices Academies of Matrimonial Lawyers, David concentrates in domestic and
primarily family law with Fawell & Fawell. international matrimonial and child custody cases. In addition to the
DCBA Editorial Board, he is a former Chair of the ISBA Family Law Section
Council. David currently sits on the ISBA’s International and Immigration
Law Committee.
DCBA Brief May/June 2021 5ARTICLES
To the ordinary layman, “Fair Use” should be just as it sounds.
It is fair to use another’s work with no negative consequence or
cost to doing so. But under the law, the concept of “Fair Use”
has a different meaning and a significant amount of disagree-
ment in the interpretation of that meaning. As an Intellectual
Property attorney, this area of the law is hardly black and
white. This article will define the legal meaning of “Fair Use”
under the Copyright laws, identify how it has been applied and
provide some suggestions for guidance to clients.
What Is Fair Use?
Under the law, fair use is an affirmative defense; it is not a
claim of right. Use of another’s copyrighted work can only be
Fair Use:
determined as being “fair use” and therefore not infringing,
by a court. The legal concept of fair use originated from the
interest in protecting the creative rights of original works of
authorship through copyright protection balanced against
What Does It the need to allow freedom of expression in various forms that
contribute to the public knowledge.1 Under 17 U.S.C. §106,
copyright protection grants certain exclusive rights to a copy-
Really Mean? right owner. Section 107 of the Copyright Act provides certain
limits on those rights and allows others to use the copyrighted
work without the owner’s permission. This is identified as The
Fair Use Doctrine:
By Amy Cohen Heller
“Notwithstanding the provisions of Sections 106 and 106A,
the fair use of a copyrighted work, including such use by re-
production in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism, com-
ment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work
in any particular case is a fair use, the four factors to be con-
sidered shall include-
1. Authors Guild v. Google, Inc., 804 F.3rd 202 (2d Cir. 2015).
6 DCBA Brief May/June 2021ARTICLES
(1) the purpose and character of the use, including whether A work is transformative if it “adds something new”, and
such use is of a commercial nature or is for nonprofit edu- essentially transforms the original work to something with
cational purposes; “new expression, meaning or message.”5 Such use cannot be
simply for the sake of using another’s work.
(2) the nature of the copyrighted work;
B. Nature of the Copyrighted Work
(3) the amount and substantiality of the portion used in rela- The second factor looks at whether the copyrighted work is
tion to the copyright works as a whole; and creative rather than an informational work which, in and of
itself, may not be subject to copyright protection.
(4) the effect of the use upon the potential market for or value
of the copyrighted work. C. The Amount and Substantiality of the Use
In this factor, both the quantitative amount of the work
The fact that a work is unpublished shall not itself bar a finding used and the qualitative value of the portion of the work
of fair use if such finding is made upon consideration of all the used are considered and weighed against the basis for the
above factors.”2 use (the first factor). For example, was the amount of copy-
righted work used necessary to accomplish the purpose for
Elements Of Fair Use – Four Factor Analysis the copying?
Although the above elements in determining fair use appear
relatively straightforward, the Courts have been inconsistent in D. The Effect of Use on the Potential Market for or Value of the
their interpretation of these factors. At the outset, Section 107 Copyrighted Work
expressly limits the definition of fair use to uses primarily for This factor considers the ultimate harm to the copyrighted
the purpose of “criticism, comment, news reporting, teaching work by the unauthorized use – will it devalue the work
...scholarship, or research...”3 While that would seem to initially for the copyright owner or adversely impact the copyright
eliminate claiming fair use when the copyrighted work was owner’s rights to reproduce, sell and/or license its work or
used for commercial purposes, the four-factor analysis is a bal- derivatives of its work.
ancing test, giving courts greater latitude to determine how to
apply the law. However, this latitude may have also caused the Applying The Four-Factor Analysis
inconsistencies in interpretation, making it difficult for prac- In reviewing some of the more recent cases dealing with the
titioners to provide clear guidance to their clients. Below is a issue of fair use, the most persuasive factor in finding for
closer look at the four factors. or against fair use is whether the work is transformative. It
A. The Purpose and Character of the Use.
This first factor has come to be understood as determining
“whether and to what extent the new work is “transformative”.4
About the Author
Amy Cohen Heller is a business-focused Intellec-
tual Property Attorney, specializing in trademark
and copyright law. She has her own practice, the
Law Office of Amy Cohen Heller. Amy is a graduate
of the University of Florida and earned her JD
degree from The John Marshall Law School.
2. 17 U.S.C. § 107.
3. Id.
4. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
5. Id.
DCBA Brief May/June 2021 7“
ARTICLES
…where the original work form...” whereas a transformative use involves copying the work
for purposes of commentary or criticism or to provide informa-
tion about the work.8 Transforming the work does not neces-
and the secondary work sarily change the work itself, but rather views the original work
from a different perspective or in a different light. A few recent
are creative, the lines of cases have grappled with the issue of fair use, giving primary
weight to the first factor and providing clarification on some of
what may be considered the other factors.
transformative becomes In Dr. Seuss Enterprises, L.P. v. ComicMix LLC,9 the defendant
created a mash-up book which contained many elements, char-
acters and compositions from some Dr. Seuss books as well as
more subjective and elements recognized from the Star Trek series. The defendants
clearly intended to copy elements of the original works and did
blurred. not obtain the permission of the copyright owners, viewing the
mash-up work as a parody and therefore a fair use. Although
the District Court found such use to be fair use, the Ninth
Circuit reversed the district court finding, analyzing the four
factors. The Court disagreed that the work was a parody since
it did not critique or comment on the Dr. Seuss or Star Trek
elements.10 In considering the second factor, being the nature
of the copyrighted work, this factor did not weigh too heavily
in either direction.11 Typically, a work that is more creative than
informational may be less likely to be considered as fair use,
but there is no clear line. The amount and substantiality of the
portion of the copyrighted work used in relation to the whole
appears the greater the degree of “transformativeness” (a new was also clarified in Seuss. The defendant argued that since it
word!), the less important the other factors have become. In only used a small portion of the Seuss works in relation to all
Authors Guild v. Google, Inc.,6 the Court clarified the meaning of the Seuss works, that the amount used was not significant.12
of a transformative use as being “one that communicates some- The court disagreed, stating that the amount used is balanced
thing new and different from the original or expands its utili- against the specific copyrighted work, not all of the authors’
ty, thus serving copyright’s overall objective of contributing to works.13 The last factor in the analysis considers the impact of
public knowledge.”7 The court further identified the distinction the use on the potential market for or value of the copyrighted
between a derivative work in which the copyright owner typi- work. In essence, would the value of the copyright holders
cally retains rights and a transformative use. A derivative work work be lessened by virtue of the claimed “fair use” work.14
“generally involves transformations in the nature of change of This element of the analysis looks at the target market of the
8. Id. at 215.
9. 983 F.3d 443 (9th Cir. 2020).
10. Id. at 452-53.
11. Id. at 455-56.
12. Id. at 456-58.
6. 804 F.3d 202 (2d Cir. 2015). 13. Id.
7. Id. at 214. 14. Id. at 458-61.
8 DCBA Brief May/June 2021ARTICLES
work and whether it will harm the copyright owners’ work or and new’ artistic purpose and character” and “something more
its ability to control derivative works. The ultimate finding than the imposition of another artist’s style . . .”22 The Second
by the Ninth Circuit was that the use by ComicMix did not Circuit further took issue with the fact that the District Court
qualify as fair use. appeared to dismiss the fourth factor, being the impact on the
potential market and value of the copyrighted work. Given that
Another recent case where fair use was found also turned pri- the works were deemed to be substantially similar, and the
marily on whether the purpose of the work was transforma- Prince prints were not transformative, the Court viewed the
tive. In Brown v. Netflix,15 the District Court found that use fourth factor as carrying greater weight.23
of eight seconds of a chorus of a children’s song as part of a
dance routine in a documentary film about Burlesque was fair The common thread in these cases focuses on the meaning
use. In this case, the Court found the use was transformative of a transformative work. In particular, where the original
because the dance routine depicted mature themes, unlike the work and the secondary work are creative, the lines of what
original work which was a children’s song about school lunch.16 may be considered transformative becomes more subjective
The fourth factor was also significant in the finding since the and blurred. But these cases also appear to be narrowing that
Court viewed it as unlikely that the original work would have meaning and giving greater weight to the fourth factor, being
been negatively impacted by the use of the portion of the song the real impact on, or value of, the copyright owner’s work.
in the documentary.17 While these cases can provide some guidance on how the
courts assess the four factors, fair use remains a case-by-case
In an even more recent case, the Second Circuit reversed a analysis.
previous finding of fair use in favor of the Andy Warhol Foun-
dation, concluding that the use of a series of prints of the music So, what can be learned from these cases and others when
legend, Prince, made by Warhol without the original photog- the question of fair use is raised? And what can we tell our
rapher’s knowledge or permission was not a fair use.18 As with clients? In simplest terms, (although the concept of fair use
Seuss and Brown, this case turned primarily on whether the is hardly simple), the defense of fair use has very limited
use of the Prince prints by Andy Warhol was a transformative applications. Clearly, the purpose and character of the use is
use. In reviewing the original photograph and the Warhol print significant. Only when the work is used for purposes of com-
side-by-side, the works look substantially similar.19 However, mentary, critique, news or teaching, and/or when the use of
the District Court viewed the Warhol print as transforming the work provides a new perspective or understanding of the
the photograph image from a “vulnerable, uncomfortable per- copyrighted work may the defense of fair use be successful.
son” to “an iconic, larger-than-life figure” and as a result, the To avoid these issues, obviously, it is always best practice to
work was held to be transformative.20 The Second Circuit dis- ask permission to use a third party’s work, no matter how
agreed. The court said too much emphasis was placed on a small or limited the use may be – don’t assume that any work
subjective view of the work.21 The Second Circuit expounded on the internet or accessible to the public is free for others to
on the meaning of “transformative” for purposes of fair use. use. If a client has already used a third-party work, use the
Where the use is clearly not commentary, criticism or paro- four-factor analysis to determine if the work may be consid-
dy, the work must be perceived as a “’fundamentally different ered fair use by a court.24
15. Brown v. Netflix, Inc., 462 F. Supp. 3d 453 (S.D.N.Y. 2020).
16. Id. at 461.
17. Id. at 463-64. 22. Id. at *26.
18. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 2021 U.S. App. LEXIS 8806 (2d Cir. 2021). 23. Id. at *41-47.
19. Id. at *48-53. 24. If you are interested in reviewing more cases about fair use, the U.S. Copyright Office now has a Fair
20. The Andy Warhol Foundation v. Lynn Goldsmith, 382 F. Supp 3d. 312, 326 (S.D.N.Y. 2019). Use Index listing helpful summaries of court opinions in this area. See: https://www.copyright.gov/
21. Andy Warhol Found. for the Visual Arts, Inc, 2021 U.S. App. LEXIS 8806 at *25. fair-use.
DCBA Brief May/June 2021 9ARTICLES
Know When to Say When:
Illinois Supreme Ct. Rule 375(b) and the Frivolous Appeal
By Andrew Leuchtmann
A wise man once told me that any trial lawyer who tells you 375(b) upon the filing of a motion by a party, or upon its own
they have never lost a case hasn’t tried enough cases. That is volition.2 Appellate courts have made clear that the purpose
to say that any seasoned trial lawyer has finished second at of the rule is punitive in nature and sanctions will be used as
least once. Any seasoned trial lawyer worth his or her salt also a tool to punish parties for misusing or abusing the appellate
knows that in order to win a case, the first person they have to process.3 Furthermore, under certain circumstances, the ap-
convince of its righteousness is him or herself. Therefore, it is pellate court may do so without conducting a formal hearing.4
difficult to find a lawyer who has just lost a trial that feels like
he or she shouldn’t have won. Furthermore, trial lawyers, al- The rule makes clear that sanctions can be imposed for several
though they are known for plenty of other things, aren’t known different reasons in relation to the filing and subsequent pros-
for being quitters. Perhaps that is why it’s even more difficult ecution (or defense) of an appeal. Those reasons include frivol-
to find a losing trial lawyer who doesn’t feel, for at least a sec- ity or lack of good faith in filing the appeal, and an improper
ond, like he or she doesn’t still have a chance; like perhaps the purpose in prosecuting or defending the appeal. “An appeal or
verdict they just received was only a temporary setback. Before other action will be deemed frivolous where it is not reason-
putting the finishing touches on their appellate brief, however, ably well grounded in fact and not warranted by existing law
any trial lawyer fresh off having received a silver medal would or a good-faith argument for the extension, modification, or
do well to remember that the appellate process is not neces- reversal of existing law.”5 An “improper purpose” may include
sarily just a second bite at the apple. The lawyer who does not harassment, delay, or driving up litigation costs.6
have a sound basis for their appeal and who prosecutes it in a
timely, cost-efficient manner, throws him or herself and their An Objective Standard
client at the mercy of the appellate court. A true understanding of Rule 375(b), however, goes beyond
the words and definitions found in its body. In fact, it is within
The Rule: Il. S. Ct. Rule 375(b) – Frivolous Appeals the comments section of the rule that we find some of its most
Illinois Supreme Court Rule 375(b)1 governs frivolous appeals prominent language. Time and again, when Illinois Courts
and the sanctions that can follow their filing. It grants the ap- have sought an objective standard to apply to their analysis
pellate court with the power to impose sanctions under Rule in determining whether a party’s actions on appeal can be
2. See Sterling Homes, Ltd. v. Rasberry, 325 Ill. App. 3d 703, 709, 759 N.E. 2d 163, 168 (2d Dist. 2001)
(“Although the plaintiff has not requested the entry of sanctions, we have the inherent jurisdiction to
impose sanctions under Rule 375(b).”); Paxton-Buckley-Loda Education Association, IEA-NEA v. Illinois
Educational Labor Relations Board, 304 Ill. App. 3d 343, 355, 710 N.E. 2d 538, 548 (4th Dist. 1999)(where
party moved for attorney’s fees under a section of the Illinois Administrative Code that did not give the
appellate court jurisdiction to award attorney’s fees, the Fourth District considered granting sanctions
under Rule 375(b) based on its own initiative, although it did not ultimately do so).
3. See Fraser v. Jackson, 2014 IL App (2d) 130283, ¶51, 12 N.E. 3d 62, 74 (2d Dist. 2014) (“The purpose of
Rule 375(b) is to condemn and punish the abusive conduct of litigants and their attorneys who appear
before us.”); Sterling Homes at 709, 168.
4. IL. S. Ct. Rule 375(b)(eff. Feb. 1, 1994) Committee Comments August 1, 1989 (“No formal hearing pro-
cess is envisioned before a sanction will be imposed, rather any sanction imposed will be by a procedure
summary in nature and will not involve the formalities required in procedures for citation of contempt
of court.”).
5. ILCS S. Ct. Rule 375(b)(eff. Feb. 1, 1994).
1. Formerly cited as IL ST CH 110A ¶375; IL ST S. Ct. Rule 375 (eff. Feb. 1, 1994). 6. Id.
10 DCBA Brief May/June 2021ARTICLES
defined as frivolous, they’ve found the language they sought in In determining whether an attorney had a sound legal basis for
the comments section, where the committee is quick to inform filing an appeal in the first place, one factor courts have looked
us that, “an appeal will be found to be frivolous if a reasonable to is the amount of existing case law. Where very little case law
prudent attorney would not in good faith have brought such an exists on a certain issue, a court may be less likely to impose
appeal, or the appeal conduct will be found to be improper if sanctions upon an attorney who files an appeal contrary to
a reasonable prudent attorney would not have engaged in such what little precedential case law there is. On well-established,
conduct.”7 often litigated issues, however, attorneys should be slow to file
an appeal that flies in the face of precedent.
How the Rule is Violated
Appellate courts have, of course, evaluated what constitutes Alcantar by Alcantar v. People’s Gas Light and Coke Co.8 involved
the actions of a reasonable prudent attorney acting in good a lawsuit wherein the Plaintiffs sued a gas company for injuries
faith on a case-by-case basis. Their analyses, however, can be sustained in a gas explosion after they entered a vacant home
categorized at least to some degree. In a broad sense, there are and lit a fire.9 The circuit court denied the plaintiffs motion to
two different ways that an attorney can violate the rule. On the substitute judge, granted summary judgment in favor of the
one hand, an attorney can find him or herself on the wrong side defendants and awarded them attorneys’ fees and costs.10 The
of the rule by bringing a baseless appeal; that is, one without plaintiffs appealed on multiple grounds, all of which were un-
legal precedent or any realistic hope of altering legal precedent. successful.11 In denying the gas company’s motion for sanctions
This is perhaps the most common scenario that comes to mind for filing a frivolous appeal, the trial court reasoned that on at
when the phrase “frivolous appeal” is brought up. On the other least one of the issues (involving the transfer of a motion to
hand, an attorney can also find him or herself afoul of the rule substitute judge), relatively little settled caselaw existed.12
if he or she goes about the appeal in a manner that suggests
perhaps the purpose of the appeal is something other than Amadeo v. Gaynor,13 on the other hand, involved an issue with
obtaining a reversal; that is to say, if the manner in which the no shortage of precedent; the driver of a vehicle who was struck
attorney goes about the appeal suggests that he or she is seek- from behind at a traffic light sued the driver of the rear vehi-
ing delay, or to drive up litigation costs. cle who struck her, and the driver of the rear vehicle filed a
7. ILCS S. Ct. Rule 375(b)(Eff. Feb. 1, 1994), Committee Comments (August 1, 1989). See also Robert
H. v. Andrea Abbott H., 2019 IL App. (5th) 180559, ¶23, 142 N.E. 3d 890, 897, 436 Ill. Dec. 489, 496;
About the Author
Mandigo v. Stolman, 2019 IL App (2d) 180466, ¶22, 137 N.E. 3d 859, 867; Paxton-Buckley-Loda Education
Association, IEA-NEA v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d 343, 355, 710 N.E. 2d
538, 548 (4th Dist. 1999); Kubiak v. City of Kewanee, 228 Ill. App. 3d 605, 607, 592 N.E. 2d 1200, 1202
(3d. Dist. 1992); Parkaway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶87, 2 N.E. 3d 1052,
1080 (1st Dist. 2013).
8. Alcantar by Alcantar v. People’s Gas Light and Coke Co., 288 Ill. App. 3d 644, 681 N.E. 2d 993 (1st Dist. Andrew Leuchtmann is a Senior Associate with
1997). The Law Offices of Mark Bishop. Previously, he
9. Id. at 646 - 47. was a career prosecutor who served with the U.S.
10. Id. at 647.
11. Id. at 648 – 650. Attorney’s Office in Houston, Texas where he con-
12. Id. at 651. See also Rock River Water Reclamation District v. Sanctuary Condominiums of Rock Cut, 2014 centrated in white collar crime, national security
IL App (2d) 130813, ¶¶ 29 – 31, 30 N.E. 3d 1081, 1091 – 92, appeal denied 391 Ill. Dec. 797, 31 N.E. and public corruption. He graduated from the
3d 772 (Even though defendant’s motion to strike on appeal lacked merit, cited no relevant authority
and was brought to discuss merits of the case in circumvention of appellate court’s page limit, motion University of Texas School of Law in 2004.
for monetary sanctions pursuant to Rule 375(b) was denied where defendant stated it was unable to
find any authority interpreting the statue in question and discussed a case that indirectly supported
its position.
13. Amadeo v. Gaynor, 299 Ill. App. 3d 696, 701 N.E. 2d 1139 (2d. Dist. 1998).
DCBA Brief May/June 2021 11“
ARTICLES
third-party complaint for contribution. The appellate court up-
held the trial court’s dismissal of the third-party complaint and On well-established,
the sanctions it imposed for filing it.14 In also imposing sanc-
tions for filing a frivolous appeal, the appellate court homed often litigated issues, …
in on the fact that the firm representing the rear driver had
been “unable to offer any authority in direct support of its legal attorneys should be slow
theories.”15
The lessons that can be learned from Amadeo do not end with
to file an appeal that flies
a caution against filing an appeal in the face of precedent on a
well-litigated issue. That case is also an illustration of how ap-
in the face of precedent.
pellate sanctions often come after ample warning signs from
the trial court. As stated above, the attorneys in Amadeo were
sanctioned by the trial court for filing a frivolous complaint violations of appellate court procedures. They have perhaps
in the first place.16 In cases like this, it is not hard to see ap- been equally slow, however, to forgive an appellant’s lack of ef-
pellate sanctions coming down the road, so to speak.17 The ficiency in prosecuting their appeal when that lack of efficiency
attorney who has been sanctioned for frivolous filings by the appears to be part of a strategy to delay the enforcement of a
trial court is already on thin ice when he or she decides to file judgment or drive up the cost of litigation.19 It is also not alto-
an appeal on the same issues. In short, when the trial court gether unheard of for the two issues to combine and the appel-
warns the attorney about the merits, or lack thereof, of his late court to find itself surmising an improper purpose based
or her case, the attorney would do well to think twice about on a party’s overwhelming lack of grounds for filing an appeal.20
ignoring it.18
Avoiding Sanctions – The Appeal as a Whole
It is not, however, only the grounds on which the appeal is The best way to dispel such doubts, of course, is to win the
based that can lead to sanctions; the manner in which the ap- appeal. But even under circumstances where winning the ap-
peal is conducted is just as crucial of a factor in the court’s peal looks to be an uphill battle, prevailing on even a single
analysis, if not more so. Although they may do so, appel- issue can go a long way toward avoiding sanctions.21 When it
late courts have been slow to impose sanctions for technical comes to deciding whether or not to impose sanctions under
19. See Kubiak v. City of Kewanee, 228 Ill. App. 3d 605, 607-08, 592 N.E. 2d 1200, 1202 (3rd Dist. 1992)
(Former city employee moved to enforce settlement and enter a judgment against City. Circuit court
granted the motion, the City appealed and Third District affirmed. The City moved to vacate judgment
and the circuit court denied the motion and awarded attorney’s fees and costs. The city appealed. At
the same time the plaintiff sought a mandamus and when the trial court granted a mandamus the City
appealed again. The Third District held that the trial court was right to issue sanctions against the City
14. Id. and in further sanctioning the City for filing a frivolous appeal under Rule 375(b), noted that, “[i]f we
15. Id. at 705. fail to impose sanctions the City will have accomplished its goal of depriving the plaintiff of the benefit
16. Id. at 704. of his judgment by forcing him to expend more in time and legal fees than the judgment is worth.”).
17. Some courts have gone even further and opined that a party who successfully defends a trial court’s de- 20. Magee v. Garreau, 332 Ill. App. 3d 1070, 1078, 774 N.E. 2d 441, 448 (2nd Dist. 2002)(Injured motorist
cision to impose sanctions on the opposing party should not be forced to do so at cost to themselves, as brought negligence action against driver of following car. Arbitration panel issued an award to injured
it often results in even greater legal fees than the sanctions themselves, induces the parties defending motorist. Circuit court issued order enforcing judgment. Following driver filed motion to vacate on the
the sanctions to abandon the appeal in attempts to keep legal costs down and negates the purpose of basis that the parties had reached a settlement agreement. Circuit court denied the motion to vacate.
imposing the sanctions in the first place. See Kubiak v. City of Kewanee, 228 Ill. App. 3d 605, 607-08, Following driver appealed the denial. Second District imposed sanctions under Rule 375(b) stating that
592 N.E. 2d 1200, 1202 (3rd Dist. 1992); Mars Steel Corp. v. Continental Bank (7th Cir. 1989) 880 F. 2d the appeal was frivolous and taken for an improper purpose where the facts clearly demonstrated that
928, 939 (addressing a similar situation under Federal Rule of Appellate Procedure 38). there was no meeting of the minds as to the alleged settlement agreement, and appellant took liberties
18. See Wittekind v. Rusk, 253 Ill. App. 3d 577, 625 N.E. 2d 427 (3rd Dist. 1993). Although this case involves with the facts that bordered on misrepresentation.).
a pro-se litigant, a more perfect example of appellate sanctions coming on the heels of ample warning 21. See Aldridge v. A.C. & S., Inc., 263 Ill. App. 3d 931, 935 – 36, 636 N.E. 2d 1, 4 (4th Dist. 1994)(Workers
from the trial court is hard to find. The plaintiff was found not guilty of harassment at a criminal trial brought claim against manufacturer for injuries resulting from asbestos exposure. Manufacturer filed
and then sued his accuser for malicious prosecution. After the trial court issued a finding for the de- third-party complaint for contribution against three other manufacturers. Circuit court granted motion
fendant in the malicious prosecution trial, the plaintiff filed a petition for rehearing, which was denied. to dismiss third-party complaint and imposed sanctions for filing against one third-party manufactur-
Then the plaintiff filed a petition for leave to appeal to the Supreme Court, which was denied. Then the er. Manufacturer appealed, but conceded all issues at oral argument except award of sanctions. The
plaintiff filed a petition to re-open the judgment, which was also denied. At a hearing regarding the award of sanctions by the Circuit Court was reversed. In denying the award of sanctions for filing a
defendant’s motion for sanctions on one of the original filings the trial court specifically warned the frivolous appeal, the Fourth District remarked that although it was concerned with the breadth of the
plaintiff about the existence of Rule 375(b). Plaintiff appealed the denial of the petition to re-open the appeal (which concerned multiple matters that were confessed at oral argument), it would not impose
judgment nonetheless and was subsequently sanctioned pursuant to Rule 375(b). sanctions for filing the appeal since a partial reversal was obtained.).
12 DCBA Brief May/June 2021ARTICLES
Rule 375(b), courts tend to look at the case as a whole and are writing their appellate brief, have trouble finding any prece-
generally slow to sanction a party where at least some legiti- dent to support the position they are about to take, would be
mate basis for appeal exists.22 wise to proceed with extreme caution. Likewise, attorneys who
find that their appeals have only a moderate chance of success
Courts Are Slow to Sanction Attorneys Who Demon- yet stand the possibility of costing enough time and money
strate Respect for the Appellate Process that they substantially negate their opposition’s award at the
Overall, appellate courts have not traditionally been quick to circuit court level should consider the possibility of sanctions
impose sanctions for filing frivolous appeals. It is when attor- if they end up finishing second at the appellate level as well.
neys use the appellate process for something other than its In short, the caselaw demonstrates that appellate courts don’t
stated purpose that sanctions are more likely to be handed take kindly to having their time wasted, and they are perhaps
down. Attorneys who have already been sanctioned for frivol- even less hospitable to being used as a tool to waste the time
ity or other misconduct at the circuit court level, or who, in and money of an opposing party.
22. See Carlson v. City Construction Co., 239 Ill. App. 3d 211, 246-47, 606 N.E. 2d 400, 422-23 (1st Dist.
1992)(In an action brought against the county and a general contractor for the wrongful death of
a subcontractor’s employee, the Circuit Court entered judgment on jury verdict for the plaintiff and
general contractor appealed. The First District held that although any errant evidentiary rulings were
harmless, the jury award was excessive. The plaintiff sought sanctions under Rule 375(b). In denying
them, the court explained that “[e]ven though some of the issues raised on appeal were more obviously
sustainable than others, we disagree that this appeal as a whole was frivolous”, especially in light of
the fact that a remittitur on damages was granted.
DCBA Brief May/June 2021 13ARTICLES
It is no secret that relocation (previously known as removal)
cases are some of the hardest cases to adjudicate. It is not
uncommon for attorneys to caution their clients that their
relocation case may be difficult to win based on the inconsis-
tent case law in Illinois. For starters, there is no bright-line test
and each case’s facts are applied on a case-by-case basis. The
line of cases that have followed since Eckert in 1988 do not
give courts, attorneys, and litigants a clear test when deciding
whether relocation is appropriate. The history of case law in
Illinois analyzing removal and relocation has drifted back and
forth on the spectrum from being more liberal to more con-
servative in allowing removal. This has resulted in inconsistent
rulings, split districts, and confusion among courts, attorneys,
and litigants. The purpose of the Illinois Supreme Court is to
The Uncertainty Of
streamline and provide clarity on issues in order to serve the
public’s best interests. However, little clarity has been provided
Relocation – Where
by the Illinois Supreme Court to date. This article will analyze
the leading case law and new statutory authority on reloca-
Are We Going?
tion: Eckert, Smith, Collingbourne, and the 2016 enactment of
Section 609.2 of the Illinois Marriage and Dissolution of Mar-
riage Act (“IMDMA”).
By Jessica L. Defino and Melissa L. Marin Prior to the 2016 amendment, the test for removal was a
“best interest” standard.1 Section 609(a) of the IMDMA was
clear that the burden was on the party seeking removal. Then
came the five factors set forth in IRMO Eckert, the formative
1988 Illinois Supreme Court Case. When deciding Eckert, the
intention of the Illinois Supreme Court was to unify the incon-
sistent rulings regarding removal in other districts. The factors
enumerated in Eckert are:
1. Whether the move enhances the general quality of life for
the custodial parent and the children;
2. What the motives of the custodial parent in seeking
removal are;
3. The motives of the noncustodial parent in resisting
removal;
1. 750 ILCS 5/609(a) (repealed by P.A. 99-90, § 5-20, eff. Jan. 1, 2016).
14 DCBA Brief May/June 2021ARTICLES
4. That it is in the best interest of the child to have a healthy move did not provide an overall enhancement to the children’s
and close relationship with both parents as well as other lives (Eckert factor #1).8 While Smith considered indirect ben-
family members; and efits an appropriate part of removal, it ultimately decided that
5. Whether a realistic and reasonable visitation schedule can a parent still needs to show that removal will grant an overall
be reached if the move is allowed.2 general enhancement to the quality of life of the children.9 In
this case, the Court ultimately decided that one child would
The court in Eckert clarified that there is no bright-line test to suffer severe emotional problems if removal were allowed.10
determine a child’s best interest, but rather, it largely depends Therefore, it did not meet the Eckert test, because the mother
on the individual facts of each case.3 With the Eckert test in failed to show that the move would increase or enhance the
place, as time went on, it was apparent that Illinois districts overall quality of life of the children.11 The evidence in Smith
were applying the Eckert factors differently. Specifically, courts further showed that the children would be forced to leave their
were placing a significant amount of emphasis on the first familiar surroundings and become accustomed to new rela-
Eckert factor (whether the move enhances the general quality tionships, which would take a toll on their emotional health.12
of life for the custodial parent and the children). In doing so, The court held that the Eckert factors are not exclusive.13 A
this typically involved an analysis of the financial benefits as- court may consider other relevant factors, but one factor does
sociated with the move (for example, whether the relocating not control.14 It further stated that the Eckert factors should be
parent would be financially better off if removal were grant- considered by the court in deciding a best interest standard
ed). Although Eckert still remains good law, other cases have “and the weight to be given each factor will vary according to
further analyzed and clarified other important factors courts the facts of each case.”15
can consider.
It is interesting that the Illinois Supreme Court accepted
In IRMO Smith, the Illinois Supreme Court accepted certiorari certiorari on the Smith case considering that the facts of
from the Third District Court of Appeals. In Smith, the mother the case were closely similar to prior cases where courts
wanted to remove the children from Peoria to New Jersey, had granted relocation based on indirect benefits to the
where her new husband resided.4 Mother testified that, due children. Usually, the Illinois Supreme Court would accept
to her new husband’s financial prosperity, she was able to be
a stay-at-home mother and spend quality time with her chil-
dren.5 In general, mother’s argument was that her successful
marriage and ability to be with her children full-time not only
enhanced her life but would indirectly enhance the children’s
quality of life.6
About the Authors
Jessica Defino is an Associate Attorney at
McSwain, Nagle & Giese, P.C. in Wheaton,
Even though there were countless cases decided before Smith
Illinois practicing exclusively in the area of
where relocation was granted based on indirect benefits to the family law. Jessica received her undergraduate
children, the Smith court ultimately defaulted to the Eckert degree from the University of Iowa in 2013 and
test.7 The Illinois Supreme Court affirmed the Appellate her Juris Doctorate from The John Marshall Law
Court’s denial of relocation based on the fact that mother’s School in 2016.
2. In re Marriage of Eckert, 119 Ill.2d 316, 518 N.E.2d 1041 (1988).
3. Id. at 326. Melissa Marin is an Associate Attorney at
4. In re Marriage of Smith, 172 Ill.2d 312, 665 N.E.2d 1209 (1996). McSwain Nagle & Giese, P.C. in Wheaton, Illinois
5. Id. at 315.
6. Id. at 321-323.
practicing in the area of domestic relations.
7. Id. at 320-324. Melissa received her undergraduate degree from
8. Id. at 323. DePaul University in 2015. She later received
9. Id.
10. Id.
her Juris Doctorate from DePaul University
11. Id. College of Law in May 2019, with a certificate in
12. Id. family law.
13. Id. at 321.
14. Id.
15. Id.
DCBA Brief May/June 2021 15ARTICLES
certiorari to clarify, review, and or reverse a lower court’s directly benefited from a move without any indirect benefits
ruling. The Smith court did none of that. Instead, the Smith would mean that “the remarriage of a custodial parent would
Court slightly touched on indirect benefits, but in its opin- rarely, if ever, provide a valid basis for removal.”23
ion, the majority did not reference any of the prior cases
decided on the issue of indirect benefits. By not following However, the Collingbourne Court cautioned that its ruling
the line of decisions that came before it, the Smith Court should not be interpreted to mean that any enhanced quality
failed to take a hard stance on the issue of indirect benefits. of life to the custodial parent automatically translates to an im-
It appears the Illinois Supreme Court was attempting to cau- provement in the child’s life.24 The Court also instructed other
tion other courts to not grant relocation so liberally, as was courts not to limit their analyses only to enhanced economic
the trend in the past. factors for the custodial parent.25 Other factors must be con-
sidered, specifically non-economic factors resulting from the
In walks IRMO Collingbourne in 2003. Unlike in Smith, the move, including but not limited to, the well-being and happi-
Illinois Supreme Court took a hard stance with respect to an ness of the custodial parent and the child.26 Smith supports the
analysis of the indirect benefits to a child. In Collingbourne, idea that the Court should consider a custodial parent and a
the Second District Appellate Court breathed new life into child’s emotional well-being when deciding whether removal is
the consideration of the benefits to the custodial parent as a appropriate.
legitimate factor in determining the child’s best interests, and it
also examined the nexus between the custodial parent and the In 2016, the legislature enacted Section 609.2 of the IMDMA
child in the custodial parent’s care.16 In Collingbourne, the Ap- which was intended to clarify the case law set forth in cases like
pellate Court denied removal and the Illinois Supreme Court Eckert and its progeny. In 2016, the term “removal” was elimi-
reversed.17 The Appellate Court held that the indirect benefit nated and the term was renamed “relocation.” Under 609.2, a
to the child did not outweigh the child’s interest in maintaining custodial parent who seeks to relocate with a child more than
a close relationship with father.18 However, the Illinois Supreme 25 miles from the child’s current residence (defined as Cook,
Court opined that although the best interests of the child con- DuPage, Lake, McHenry, or Will) to another residence further
trol, the Court in Eckert did not distinguish between direct and than 25 miles away must get approval from the non-custodial
indirect benefits in a helpful way.19 Collingbourne ultimately parent.27 The relocating parent must first provide written
held that “[i]f only the direct benefits that affected children notice of relocation to the other parent and file it with the
were considered, rarely would a situation arise where removal court.28 The written notice must provide the non-custodial
would be permitted where children were in a good environ- parent with at least 60 days’ notice of the relocation unless it is
ment with good schools, good parents, and good friends.20 The “impracticable.”29 The non-custodial parent can either sign the
Court stated that a child may receive an indirect benefit that written notice and agree to the relocation or object. 30 If there
stems from the parent’s enhanced quality of life.21 Further, the is an objection, then the parent seeking to relocate must file a
Court stated, “…what is in the best interests of the child cannot formal petition with the court. 31
be considered without assessing the best interests of the other
members of the household in which the child resides, most par- According to the 2016 amendments, Section 609.2 provides
ticularly the custodial parent.”22 Also importantly, the Court that a Court must consider the following factors when deter-
determined that requiring a parent to show that a child was mining whether to award relocation:
23. Id. at 527.
24. Id. at 528.
16. In re Marriage of Collingbourne, 204 Ill.2d 498, 791 N.E.2d 532 (2003). 25. Id.
17. Id. 26. Id. at 528-529.
18. Id. at 519. 27. 750 ILCS 5/609.2.
19. Id. at 525. 28. 750 ILCS 5/609.2(c).
20. Id. (citing In re Marriage of Ludwinski, 312 Ill. App 3d 495, 499; 727 N.E.2d 419 (2000)). 29. 750 ILCS 5/609.2(d).
21. Id. at 525-526. 30. 750 ILCS 5/609.2(e), (f).
22. Id. at 526. 31. 750 ILCS 5/609.2(f).
16 DCBA Brief May/June 2021“
ARTICLES
The 11th factor is a 8. The wishes of the child, taking into account the child’s
maturity and ability to express reasoned and independent
preferences as to relocation;
“catch all” factor, 9. Possible arrangements for the exercise of parental re-
sponsibilities appropriate to the parents’ resources and
which allows the Court circumstances and the developmental level of the child;
10. Minimization of the impairment to a parent-child relation-
to consider anything it ship caused by a parent’s relocation; and
11. Any other relevant factors bearing on the child’s best
may deem relevant for interests.32
purposes of relocation. The 609.2 factors expanded on the “best interest” standard un-
der the old 609(a) statute. The first time the Second District
heard an appeal based on the new statute was In re Parentage
of P.D. In that case, the court explained that 609.2 essentially
removed the court’s obligation to consider a custodial parent’s
enhanced quality of life and that the omission must have
been intentional.33 Instead, the court indicated that it is more
focused on the impact of the move on the child.34 The court
further expounded,
1. The circumstances and reasons for the intended relocation; The legislature presumably had knowledge of the supreme
2. The reasons, if any, why a parent is objecting to the intended court’s decisions in Eckert and Collingbourne and yet chose
relocation; not to include the first Eckert factor in the new statutory
3. The history and quality of each parent’s relationship with directives for determining a child’s best interests. The leg-
the child and specifically whether a parent has substantial- islature evidently intended to emphasize the child’s best
ly failed or refused to exercise the parental responsibilities interests over those of the custodial parent. Given the new
allocated to him or her under the parenting plan or alloca- statutory directives, we find the reasoning of Eckert and
tion judgment; Collingbourne and progeny, to the extent it requires weigh-
4. The educational opportunities for the child at the existing ing the likelihood that the move will enhance the custodial
location and at the proposed new location; parent’s quality of life, is unhelpful in evaluating the trial
5. The presence or absence of extended family at the existing court’s best-interest determination in the case before us. 35
location and at the proposed new location;
6. The anticipated impact of the relocation of the child; Notably, the Second District Appellate Court in Kavchak
7. Whether the court will be able to fashion a reasonable distinguished P.D. by stating that a court can consider, “an
allocation of parental responsibilities between all parents enhancement to the custodial parent’s quality of life un-
if the relocation occurs; der 609.2(g)(11) as long as the court is satisfied that it has a
32. 750 ILCS 5/609.2(g).
33. In re Parentage of P.D., 2017 IL App (2d) 170355 ¶ 36, 87 N.E. 3d 1040 (2d Dist. 2017).
34. Id. at ¶ 32.
35. Id. at ¶ 36.
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