Posted on December 26, 2017

I Have Sole Custody. We live in Chicago. Can I Move The Children Wherever I Want?

What Is Sole Custody?

In Illinois, sole allocation of parental responsibilities (formerly known as “sole custody”) allows a parent to be solely responsible for making decisions for a minor child. Statutorily, these decisions are broken down into four different areas, namely: Education, Religion, Medical, and Extra Curricular Activities.

Generally, the parent who is allocated sole responsibility over these areas has the “final” authority to decide how to proceed if the parties reach an impasse. However, the typical scenario requires both parties to engage in a discussion regarding any decision-making, and if there is no agreement, then the party with the sole responsibility gets to make the final decision.

A parent with sole custody has ‘veto-power’ over anything the other parent might do with the child.

While the parent with “sole custody” can theoretically make ‘all’ major decisions for their children, relocating is NOT one of the decisions that a parent with sole custody can make.

What Is Relocation? 

Under the relatively new (2016) Illinois Marriage and Dissolution of Marriage Act and the Parentage Act, the law defines ‘Relocation’, under 750 ILCS 5/600(g), to mean:

“(1) a change of residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence, as measured by an Internet mapping service;

(2) a change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child’s current primary residence, as measured by an Internet mapping service; or

(3) a change of residence from the child’s current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence, as measured by an Internet mapping service.”

Under this statutory definition, a parent who has primary parenting time, or one of the two parents who have equal parenting time “may” seek to relocate with the child. The statutory requirements are discussed in 750 ILCS 5/609.2. This is important because the use of the word “seek” means that they have an obligation to request for relocation, and may not relocate without consent, either from the other party or from the court. See 750 ILCS 6/609.2(b).

How Do You Relocate?

750 ILCS 6/609.2(c) further qualifies that “a parent intending a relocation… must provide written notice of the relocation to the other parent under the parenting plan or allocation judgment. A copy of the notice required under this Section shall be filed with the clerk of the circuit court.”

This section of the statute does not distinguish whether a parent has or does not have sole custody or sole allocation of parental responsibilities. It focuses on the parenting time the parties are awarded and focuses on how this relocation would affect the children’s relationship with the non-relocating parent. In an effort to maintain consistency and minimal disruption of the children’s schedule, the new statute looks to have the parent who seeks relocation go through certain procedures to ensure that what happens with this relocation happens for the best interest of the minor children.

“The party seeking judicial approval of [a] proposed relocation must establish by a preponderance of the evidence that the relocation is in the child’s best interests.” In re Marriage of Kavchak, 2018 IL App (2d) 170853

The Illinois Marriage and Dissolution of Marriage Act provides guidelines as to how a court is to decide on a Petition To Relocate.

“The court shall modify the parenting plan or allocation judgment in accordance with the child’s best interests. The court shall consider the following factors:

(1) the circumstances and reasons for the intended relocation;
(2) the reasons, if any, why a parent is objecting to the intended relocation;
(3) 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;
(4) the educational opportunities for the child at the existing location and at the proposed new location;
(5) the presence or absence of extended family at the existing location and at the proposed new location;
(6) the anticipated impact of the relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation;
(9) possible arrangements for the exercise of parental responsibilities appropriate to the parents’ resources and circumstances and the developmental level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a parent’s relocation; and
(11) any other relevant factors bearing on the child’s best interests.” 750 ILCS 5/609.2

The decision to allow relocation “cannot be reduced to a simple tally of which party “won” a majority of the enumerated factors; instead, because some factors in a particular case may weigh more heavily than others, the trial court must consider all factors and evidence touching on the issue and must arrive at a reasonable result.” In re Marriage of Kimberly R. v. George S., 2021 IL App (1st) 201405

Ultimately, regardless of how much responsibility a parent is allocated for a minor child, that parent still needs to inform the other about a possible relocation and obtain consent from them or otherwise follow statutory guidelines and procedures regarding relocation.

In Illinois, What Happens If You Relocate With A Child Without Permission?

Relocation allows either parent to file a motion to modify the parenting time schedule. “[A] parent’s relocation constitutes a substantial change in circumstances” In re Marriage of Adams, 2017 IL App (3d) 170472

“[R]elocation…without first obtaining leave of court….in and of itself, [is] not sufficient grounds for revoking [parenting time]” Mathey v. Mathey, 1 Ill. App. 3d 1008, 1009 (Ill. App. Ct. 1971)

So, the non-relocating parent can file a motion to modify parenting time based on the move, but the relocating parent can not modify parenting time based on their unilateral actions.

Alternatively, if you move with your children out of state and your spouse does not object with a divorce or parentage filing within 6 months then the jurisdiction of the courts is no longer Illinois. The jurisdiction of the court is whichever state you moved to. That state may have laws more favorable than Illinois’ laws in regards to relocating with a child. Also, it may be prohibitive for your ex to challenge the move in another state.  That being said, imagine being in a new state for 5 months and then having your ex file a challenge in an Illinois family law court…dragging you back to Illinois.  This is an extremely risky gambit that I would not recommend.

What Is Not Relocation With A Child in Illinois?

While sole custody may not allow you to move unilaterally, it does allow a parent to travel without the permission of the other parent.  But, beware, a visit can, effectively, become a relocation if the visit lasts long enough.

Contact my Chicago, Illinois law office for a free consultation regarding these issues.  If you have read and understood the above article, you know that you cannot afford to wait.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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