NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190730-U
Order filed April 24, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
AMBER B., ) Appeal from the Circuit Court ) of the Fourteenth Judicial Circuit, Petitioner-Appellant, ) Rock Island County, Illinois. v. ) ) Appeal No. 3-19-0730 DANIEL B., ) Circuit No. 14-F-177 ) Respondent-Appellee. ) The Honorable ) Clarence M. Darrow Judge, presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Justices O’Brien and Schmidt concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The trial court did not abuse its discretion in modifying the parties agreed parenting schedule, granting the child’s father sole decision-making responsibilities and the majority of parenting time.
¶2 Petitioner Amber B. and respondent Daniel B. were never married but had a child, K.B.,
2012. On July 28, 2015, they filed a joint parenting agreement establishing their respective and
mutual responsibilities regarding K.B. The trial court entered an agreed order incorporating the
terms of the parties’ agreement. On February 26, 2019, Daniel filed an amended petition for immediate and permanent modification of parenting time and significant decision-making
responsibilities. On November 25, 2019, the trial court entered an order granting Daniel sole
decision-making responsibility for K.B. Amber appeals this order. We now affirm.
¶3 FACTS
¶4 In their July 2015 joint parenting agreement, Daniel and Amber agreed to several terms
designed to ensure a healthy and collaborative atmosphere where they could co-parent K.B. The
first term mandated that they would “discuss the major decisions affecting the health, education,
religious training and the general welfare of the child prior to any major decision being made.”
Subsequent terms required each parent to inform the other of matters affecting their joint
responsibilities if and when those matters occurred while one parent had physical custody of
K.B. Said responsibilities included medical care costs, school fees and parent-teacher meetings,
extracurricular activities and schedules, and other general matters. The terms required the parent
with physical custody to provide K.B. with: “a) regular and nutritious meals; b) clean and
appropriate clothing; c) sanitary and reasonably private living and sleeping quarters; [and] d)
appropriate medical and dental treatment.” The parents were required to “always conduct”
themselves “so as to promote the cooperation and involvement of the other on matters
concerning” their joint parenting responsibilities. The parent with residential custody was to
“take the necessary action with the school authorities of the school in which the child may be
enrolled to” keep the non-residential parent informed regarding K.B.’s education and related
matters. Finally, Daniel and Amber agreed to “notify the other if they marry or [live] with
another person.”
¶5 The terms prohibited both parents from discussing their relationship with K.B., intruding
on the other parent’s privacy, questioning K.B. on the conduct or activities of the other parent, or
2 raising the issue of child support with K.B. The terms also prohibited either parent from making
false allegations or abusive comments against the other parent.
¶6 On July 28, 2015, the trial court issued an agreed order incorporating the joint
agreement’s term. Therein, the trial court allocated the parties’ parenting time “using a 2-2-5-5
schedule.” Daniel would parent K.B. “every Monday from 3:00 p.m. or after school until
Wednesday at 3:00 p.m. or after school.” Amber would parent K.B. “every Wednesday from
3:00 p.m. or after school until Friday at 3:00 p.m. or after school.” Daniel and Amber would
alternate weekends from Friday at 3:00 p.m. or after school until Monday at 3:00 p.m. or after
school.” Under the joint agreement, neither parent would intrude on the other’s parenting time.
The court also established annual parenting time schedule for holidays, which alternated between
odd-numbered and even-numbered years.
¶7 The court ordered Daniel to pay $260 per month to Amber in child support. It required
each parent to pay half of all health insurance coverage and uncovered medical expenses. The
parents would equally split any costs for sports or extracurricular activities they agreed to in
advance. Each parent was responsible for the cost of daycare or childcare services during their
parenting time. Daniel and Amber would alternate claiming K.B. as a dependent on their federal
income taxes, with Daniel doing so in odd-numbered years starting in 2015.
¶8 On December 26, 2018, Daniel filed a petition for immediate modification of the
parenting time and significant decision-making responsibilities. He filed an amended petition on
February 26, 2019. In his amended petition, Daniel alleged that:
(1) Amber failed and refused to comply with the parenting schedule;
(2) Amber was engaging in a complete disregard of the schedule to prohibit Daniel from
exercising any parenting time;
3 (3) Amber was refusing to allow Daniel contact with K.B.;
(4) K.B. had excessive excused and unexcused absences from school during Amber’s
parenting time;
(5) Amber, unilaterally and without Daniel’s advice or consent, removed K.B. from the
school he had been attending;
(6) Amber refused to provide proper nutrition to K.B., which resulted in poor health;
(7) Amber refused to communicate or cooperate with Daniel on significant decision-
making responsibilities;
(8) Amber believed that she is possessed by a spiritual entity which guides her decisions
regarding raising K.B. Daniel alleges that this belief resulted in erratic and
detrimental parenting decisions;
(9) Daniel believes that Amber had been engaged to marry five times since the Order of
July 28, 2015, and has cohabitated with these third parties;
(10) Daniel believes that Amber was unemployed and unable to support herself
without relying on the assistance of third parties; and
(11) Daniel believes that Amber changed her residence multiple times.
¶9 Daniel argued that, because these factors involved Amber’s failure to communicate with
him regarding significant decisions and because she made significant decisions such as removal
from school without consulting or gaining his approval, a substantial change in circumstances
occurred such that K.B.’s best interest would be served by awarding Daniel sole significant
decision making responsibilities. He requested immediate placement with Daniel subject to
parenting time allocated to Amber. He also requested that the trial court terminate his child
support obligation.
4 ¶ 10 With his amended petition, Daniel submitted a proposed parenting plan under which
Amber would be allocated parenting “every other weekend from Friday after school until Sunday
evening, and every Wednesday from after school until 8:00 p.m.” He explained that the trial
court should not grant Amber overnight parenting time on a school night because of “her
inability to ensure that the child attends school or arrives to school on time.” Finally, Daniel
proposed that all decision-making responsibilities regarding K.B.’s education, healthcare,
religion, and extracurricular activities be allocated to him.
¶ 11 On April 8, 2019, Amber filed a proposed parenting plan. She requested the trial court
grant her all major decision-making responsibilities regarding raising K.B. The trial court held a
hearing on September 12, 2019. The evidence was as follows.
¶ 12 Daniel is a self-employed tattoo artist. He has one child, K.B., who at the time of his
testimony was in the second grade at Eugene Field School in Rock Island. Daniel lives in
Davenport with his wife Isabelle Guitard whom he married on June 30, 2018. K.B.’s mother is
Amber who is a cancer survivor. She did not know if she was fully cancer-free, but stated that
her health had not affected her ability to care for K.B. At the time of the trial, Amber had a
partner with whom she was planning on spending the rest of her life. She was not living with
him; instead, she lived with her parents for three years in Rock Island and shared a room and
bathroom with K.B. Amber has never met nor talked to Isabelle.
¶ 13 In the Fall of 2017, Amber told the school administration that K.B. was being bullied.
She also told Daniel that K.B. was cornered in the bathroom by bullies and he was so fearful that
he urinated through his pants. Daniel and Amber met the principal Dennis Weiss who revealed
that Amber’s story about extreme bullying was untrue. At trial Daniel admitted he confronted
Amber outside the school after the meeting, she did not respond to him as she walked away so he
5 yelled to her. The following Monday Amber obtained an ex parte order of protection by claiming
that Daniel engaged in abusive threats and touching. She also claimed that Daniel physically and
emotionally abused K.B. on unspecified days that same month and commanded him not to tell
anyone. Daniel was prohibited from seeing K.B. for approximately one month until an agreed
order for supervised visitation was entered. A week after the visitation order, Amber agreed to
dismiss the order of protection altogether, and the parties agreed for the child to engage in
counseling.
¶ 14 In November 2018, Amber once again sought an ex parte order of protection. She alleged
that Daniel was not feeding K.B. and was refusing to give K.B. prescribed allergy medication.
The court denied the emergency order of protection. Despite the court’s decision, Amber refused
Daniel his parenting time from November 12, 2018, to January 15, 2019. At trial, Amber initially
denied she withheld visits, but when confronted with both the previous testimony of a police
officer who witnessed her action and her own text messages plainly stating she was going to
keep K.B. from Daniel, she admitted her interference. In court she explained that she did not
surrender K.B. when the police were present because “We were fighting…like always.”
Ultimately, Daniel was unable to resume visitation with K.B. until after Amber retained counsel
and litigation escalated.
¶ 15 Amber justified her actions in part by claiming Daniel was starving K.B., causing him to
be sick and lose ten pounds in a month, which was “intense”. She stated that she had to take food
to K.B.’s school on the days K.B. was in Daniel’s care to ensure he was eating. Amber also
stated that between December 2018 and January 2019, when she kept K.B. from Daniel, K.B.
gained ten pounds. Although K.B.’s medical records confirmed that he gained 10.53 pounds
6 between his August 2018 and his January 2019 appointments, the record also showed that he was
overweight, and the doctor counseled both Daniel and Amber on the risks of childhood obesity.
¶ 16 Daniel stated that on his parenting days he prepared K.B. a healthy school lunch, and
Weiss testified that the school also offered a free balanced lunch to all of the children. Weiss also
testified that Amber would bring K.B. lunch from a fast food restaurant and his other lunch
would be thrown in the garbage.
¶ 17 In December 2018, during the time she prevented Daniel from seeing K.B., Amber
unilaterally decided to withdraw K.B. from school. She testified that prior to implementing that
decision she went to Daniel’s home, discussed homeschooling with him in his living room and
obtained his consent. Daniel denied this discussion ever took place. Weiss testified that Daniel
was surprised when Weiss informed him K.B. was no longer attending the school. Angela Minas,
K.B.’s teacher, testified that K.B.’s performance was the same or slightly diminished after
homeschooling, but test results showed his reading scores dropped from the 70th percentile to
the 29th percentile between the Fall and Spring.
¶ 18 To correct the drop in performance, the school administration recommended K.B. for a
nonobligatory summer learning enrichment program known as Spring Forward. Amber did not
enroll K.B. in the program, but Daniel did. At trial, Amber’s testimony that Daniel never told her
about it was rebutted with text messages between the parties. Daniel took K.B. to Spring
Forward on his parenting days for several weeks. Amber never took K.B. to Spring Forward on
her parenting days. However, Amber decided to attend the family celebration day on the last day
of the program. At trial she claimed that she went to have lunch with K.B. Upon arrival, she
found him with Daniel engaged in an activity. K.B. ran up to her to say hello. A few moments
later, Daniel saw Amber and K.B. with his backpack, standing over by the door and ready to
7 leave. It was between 10:00 and 10:30 A.M. Daniel told Amber he had the whole day available
and that he had planned to stay all day at the camp with K.B. He told her that he would drop
K.B. off at her house and she was welcome to stay. Amber got angry and started raising her
voice and K.B. started crying. Amber got angrier and louder. A counselor distracted Daniel and
Amber left, taking K.B. with her. Daniel texted her to explain that he wanted to continue his
parenting time until its scheduled end at 3:00 P.M. Daniel testified that he called the police
because Amber was irate, belligerent, and refused to cooperate. Daniel did not see K.B. again
that day.
¶ 19 Amber stated that it was nearly impossible to co-parent with Daniel. She believed that no
matter what she said, Daniel would want the opposite. She admitted that sometimes she does not
communicate well with Daniel. She described it as “violently frustrating.” She believed that she
and Daniel had continuous unresolved issues over K.B.’s bedtime, medications and general
cleanliness. Those discussions, she stated, caused her to look like a “screaming lunatic.” She
explained that her issues with Daniel grew out of him making major decisions without first
discussing them with her. Daniel testified that he leans over backwards to co-parent with Amber
and coordinate K.B.’s activities with her. Amber stated that Daniel does not remain calm when
they communicate, and that he is verbally aggressive.
¶ 20 Amber accused Daniel of being physically and emotionally abusive to K.B. She claimed
that he would send K.B. to bed without having dinner. She also expressed concern about Daniel
smoking indoors while in the presence of K.B. She found the smoking problematic because K.B.
has a history of respiratory problems and uses an inhaler. Daniel’s wife, Isabelle described him
as very patient and kind with K.B. When K.B. misbehaves, Daniel usually disciplines him by
verbally correcting him. Although Daniel occasionally used physical discipline on K.B., Isabelle
8 never saw Daniel hit K.B. She testified that Daniel might send K.B. to his room if he was in
trouble, and she saw him send K.B. to bed without dinner only once.
¶ 21 Daniel testified that K.B. does have a rebellious streak against him but that their
relationship is typical of a father and son. Daniel modified his schedule to be available for K.B.
and not have to work on parenting days. His typical activities included spending a lot of time
outside in parks, going on walks, having saber battles in the yard, and helping K.B. ride a two-
wheeled bike. The evenings of parenting days are spent doing homework with K.B. or playing
video games. He also tried to wean K.B. away from a “junk food centered diet” by including
fruits and vegetables to his diet.
¶ 22 After the trial testimony was heard, the trial court issued a written opinion discussing its
factual findings. First, the court found that K.B. was bonded to both Daniel and Amber. The
court noted that K.B. was often ill and that Amber was more “aggressive” than Daniel in
monitoring his health. It stated that it was “not persuaded that Daniel [was] the cause of, or
neglect[ed, K.B.’s] poor health.” The court also found that K.B. was overweight for his age. It
noted that K.B.’s weight is because “Amber’s activities with [K.B. were] focused on reading and
gaming. Daniel’s activities with [him were] more balanced with a greater emphasis on physical
activity.” The court concluded that Daniel and Amber were unable to co-parent on K.B.’s
nutrition and diet. The trial court also concluded that the parties were unable “to co-parent on the
issue of education either.”
¶ 23 The trial court also found Amber less credible than Daniel regarding the causes of their
inability to co-parent K.B. and explained that Amber’s willingness to co-parent with Daniel was
“too often conditioned upon Daniel’s compliance with her demands.” It noted that those
demands were belligerent and often made with false allegations of abuse against Daniel. The
9 court stated that K.B. would “benefit from the stability and consistency of one household and
one parent making significant decisions.” It then found that K.B.’s “best interest would be served
if Daniel were awarded all parenting time subject to” some allocations to Amber.
¶ 24 On November 25, 2019, the trial court issued its order regarding the allocation of
parenting time, significant decision-making responsibilities and child support. The court found
that Daniel had “met his burden of establishing a substantial change in circumstances affecting
the wellbeing of [K.B.] such that a modification [was] necessary to serve [K.B.’s] best interest.”
The court ordered that Daniel be allocated sole decision-making responsibilities regarding K.B.’s
education, extracurricular activities, religion, and medical care. To give full effect to its order,
the court declared that Daniel’s address would be used to enroll K.B. in the appropriate school
district starting October 18, 2019. The court also ordered that Daniel’s child support obligation
be “terminated effective October 18, 2019.” Finally, the court granted Daniel exclusive claim to
the federal tax credit and state tax deduction for K.B. each year.
¶ 25 This appeal now follows.
¶ 26 ANALYSIS
¶ 27 On appeal, Amber argues that the trial court erred in granting Daniel sole decision-
making responsibilities and the majority of parenting time. Under the Dissolution of Marriage
Act, a trial court may modify an existing parenting plan “if the court finds, by a preponderance
of the evidence, that on the basis of acts that have arisen since the entry of existing parenting
plan or allocation judgment or were not anticipated there, a substantial change has occurred in
the circumstances of the child or of either parent [such] that a modification is necessary to serve
the child’s best interests.” 750 ILCS 5/610.5(c) (West 2019).
10 ¶ 28 As an initial matter, both parties advocate for the use of the manifest weight of the
evidence standard of review on appeal. However, that standard only applies when the trial court
finds that no substantial change in circumstances has occurred. In re Marriage of Wengielnik,
2020 IL App (3d) 180533, ¶ 12. Once the court finds a substantial change and grants or denies a
modification, we apply an abuse of discretion standard of review. Id. “An abuse of discretion
occurs where the trial court’s ruling is arbitrary, fanciful or unreasonable, or where no reasonable
person would take the view adopted by the trial court.” People v. Chambers, 2011 IL App (3d)
090949, ¶ 10 (citing People v. Donoho, 204 Ill.2d 159, 182 (2003)).
¶ 29 Although the parties did not argue whether the trial court erred in finding a substantial
change in circumstances, we find that no abuse of discretion occurred in this finding. The July
28, 2015, agreed order was entered in accord with Amber and Daniel’s joint agreement to
“discuss the major decisions affecting the health, education, religious training and the general
welfare of the child prior to any major decision being made.” However, both parties testified that
their ability to effectively communicate has diminished, and Amber stated that it was nearly
impossible to co-parent with Daniel. The trial court found that Amber violated the agreed order
by homeschooling K.B. for an extended period of time. During the same period, Amber denied
Daniel his allocated parenting time. Finally, before removing K.B. from school, Amber would
interfere with Daniel’s parenting time by visiting K.B. during lunch time at school and showing
up on days allocated to Daniel. We find it reasonable to conclude that said acts constitute a
substantial change in the circumstances since the agreed order was issued.
¶ 30 The occurrence of a substantial change in circumstances is one of two factors necessary
for modifying a parenting plan. 750 ILCS 5/610.5(c). The second factor is whether the
modification was necessary to serve the best interests of the child. Id. In determining the child’s
11 best interests, the trial court must consider the relevant factors listed in subsection 602.5(c) of the
Act. 750 ILCS 5/602.5(c) (West 2019). Amber argues that the relevant factors did not favor
modifying the agreed parenting plan. Alternatively, she argues that if the factors favored a
modification, they leaned in favor of allocating the majority of parenting time and all major
decision-making responsibilities to her. We disagree with her arguments and conclude that the
trial court did not abuse its discretion in modifying the parenting plan to allocate sole decision-
making responsibilities and the majority of parenting time to Daniel.
¶ 31 First, the trial court found that Amber and Daniel were unable to co-parent K.B. and that
a co-parenting plan could no longer provide K.B. a stable environment. In determining the best
interest of a child, the trial court must consider “the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship between the other parent and the
child 750 ILCS 5/602.5(c)(11) (West 2019). The trial court found, and the testimony supports its
conclusion, that Amber and Daniel are unable to co-parent K.B. First, Despite Daniel’s statement
that he is willing to communicate with Amber, she stated that communication with him made her
look like a “screaming lunatic.” She also admitted that it was nearly impossible for her to co-
parent with him. We find, as the trial court did, that Amber’s belligerent demands of compliance
from and false allegations against Daniel exacerbated their inability to co-parent.
¶ 32 Second, K.B.’s educational setting and performance are relevant factors to be considered
under the Act. 750 ILCS 5/602.5(c)(11) (West 2019). Despite the agreed order, Amber withdrew
K.B. from his school without first discussing the matter with Daniel, leading to a significant
decrease in his test scores and school performance. After K.B. was re-enrolled in school, Amber
resisted his placement in a summer program intended to correct his declining performance. She
went as far as to interrupt Daniel’s parenting time because she opposed K.B.’s attendance in the
12 program. On the other hand, Daniel neither interfered with the school administration nor
excluded Amber from relevant decision-making.
¶ 33 Finally, the trial court may consider the child’s mental and physical health, 750 ILCS
5/602.5(c)(1) as well as any other factor it expressly finds to be relevant. 750 ILCS
5/602.5(c)(15). Here, the trial court expressly found that that the parents were not able to co-
parent on decisions related to K.B.’s health and nutrition. Amber and Daniel disagreed on K.B.’s
diet with Amber unilaterally altering K.B.’s school diet during Daniel’s parenting time. While
she was homeschooling K.B. and had exclusive control over his diet, K.B. gained ten pounds and
was medically declared overweight. The doctor ultimately discussed the risk of childhood
obesity with both parents. On these bases, we find ample evidence in the record to support the
trial court’s find that there had been a substantial changes in the ability of the parties to
cooperatively co-parent and that the best interests of K.B. would be served by changing his
residence and the primary decision-making from Amber to Daniel.
¶ 34 CONCLUSION
¶ 35 The judgment of the circuit court of Rock Island County is affirmed.
¶ 36 Affirm.