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Moving the Children's Primary Residence

Relocation – Moving the Children's Primary Residence

Illinois law calls moving out of the state with minor children (or a significant distance within the state) “relocation.”  The law regarding relocation changed dramatically on January 1, 2016.

When the child's primary residence is in a collar county to another residence in the state greater than 25 miles, this is a prohibited relocation.  For those outside of the collar counties, there is a 50 mile rule.  When the child's current primary residence is changed outside more than 25 miles out of state from the current primary residence, this is also not allowed.

For a relocation beyond these boundaries, the parent who has equal or primary parenting time must jump through the hoops that apply to relocation cases.  If contested, whether relocation is granted is based on the best interest of the children.

I have “sole custody.” Do I need the father's permission, or a court order, to move with my child to another state?

The answer is a qualified yes.  The exception is the so called 25 mile rule.

If I have joint custody can I block removal of the children from outside these mileage restrictions?

Not on the basis of having “joint custody.” Joint custody does not give you veto power.  The issue would still be based on the children's best interest.

Is a court order always required in order to permanently remove children outside of the boundaries you describe?

Not necessarily.  First, sometimes the original marital settlement agreement (incorporated into the divorce judgment) would give a parent permission to move outside of the stated boundaries in the future.  In fact, the provisions of the 2016 law regarding what should be in parenting plans provides, “(12) provisions for resolving issues arising from a parent's future relocation, if applicable.”  A parent who wishes to move outside of the boundaries described above must provide written notice of the relocation to the other parent under the parenting plan or allocation judgment.  A copy of the notice must be filed with the clerk of the court.  The written notice must then provide at least 60 days' notice unless this is “impracticable.”  There are other detailed requirements for what the notice must contain.

If the non-relocating parent signs the notice that was provided and the relocating parent files the notice with the court, the relocation must be allowed.  The court then modifies the parenting plan or allocation judgment to accommodate a parent's relocation as agreed by the parents, as long as the agreed modification is in the child's best interests.  If the non-relocating parent objects or does not sign the notice (or the parents cannot agree on a modification of the parenting plan or allocation judgment), then the parent seeking relocation must file a petition seeking permission to relocate.

Can the judge refuse to allow me and my child to move to another state when the move is my only practical alternative?

Yes. The judge can refuse. The usual factual basis for a request to relocate a child from Illinois is that in the divorce the mother is granted primary residential care of the child. The mother remarries. Her new husband is required by his employer to move to another state.  Other situations favorable to removal include a job transfer or significantly enhanced job opportunities to the primary residential parent.   There are a number of factors the court looks to in determining whether to grant relocation.

What is the basis for the court allowing children to be permanently removed from Illinois?

There are 11 factors the court applies in determining relocation:

the circumstances and reasons for the intended relocation;

the reasons, if any, why a parent is objecting to the intended relocation;

the history and quality of each parent's relationship with the child and specifically whether a parent has substantially failed or refused to exercise the parental responsibilities allocated to him or her under the parenting plan or allocation judgment;

the educational opportunities for the child at the existing location and at the proposed new location;

the presence or absence of extended family at the existing location and at the proposed new location;

the anticipated impact of the relocation on the child;

whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs;

the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to relocation;

possible arrangements for the exercise of parental responsibilities appropriate to the parents' resources and circumstances and the developmental level of the child;

minimization of the impairment to a parent-child relationship caused by a parent's relocation; and

any other relevant factors bearing on the child's best interests.

What can I do to convince the court there should be a move?

There should be a good economic reason to show that the children's economic condition will improve by the move.

You should gather evidence (often available on the Internet) of the quality of education in the community.  This factor is stated, as, “the educational opportunities for the child at the existing location and at the proposed new location.”

Also, if the children are involved in extracurricular activities, the type of such activities which will be available to them in the new community.

I remarried and my new husband has a very significant career opportunity which requires we move to another state. Will the court allow me to take the children out of state?

Generally – if you build a good case. The new husband's career move as a basis for wanting to move the children out of state is a typical reason for an application for relocation.

On the other hand, under earlier Illinois law, the appellate court had affirmed the trial court's denial of a mother's application for removal despite the fact that the husband's wages would go down if he did not move out of state because the drop in salary was not significant.

Will a substantially higher salary for the step-father be considered a benefit to the child?

Yes, but don't count on it carrying the day. This is the “indirect benefit” concept. It is a “trickle down” approach. If, however, the step-father's increased income allows the mother not to be employed outside of the home, this is a plus.

It is better to show direct benefits for the child, such as health benefits, better schools, closer to supportive family members (as when the mother moves back to her community of origin).

Does the child's preference regarding relocation count?

Yes.  Factor 8 states that a consideration is, “the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to relocation.”

For the relocation that involves a significant distance (such as an out of state relocation) to be allowed, will the non-residential parent be given longer blocks of parenting time?

Generally – yes.  Factors include “the anticipated impact of the relocation on the child” and “whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs” and “minimization of the impairment to a parent-child relationship caused by a parent's relocation.”

Often when removal is to distant location, larger blocks of time are ordered rather than frequent exchanges.  But the developmental level of the children has an effect.  For example, relocation to a distant state may be more difficult when the children are younger.  The goal should be to give the non-moving parent as close to what he (or she) had before as possible.  In cases of removal to a distant state, this has usually meant that the parent staying in the area should be offered the major part of the summer vacation.

Do these rules regarding relocation of children apply to non-marital children where the other parent has visitation?

Generally, yes.

What is the impact of joint custody on the right to remove a child?

None, if you are referring to the usual joint custody, which is the right of the non-residential parent to participate in major decisions affecting the child. If, however, the parents share substantially equal time with the child (but not an equal time allocation), the parent seeking the move has a steep uphill fight.  In the somewhat unusual case of an equal time allocation the law regarding requesting relocation would apply to both parents.

How long does it take to get the court's approval for removal of a child?

Once both parents agree it is only a matter of several days until a court order for removal can be entered. If an agreement cannot be reached and the case must go to trial, probably the soonest the case will come to trial is five or six months.  Occasionally, the case may take longer.

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