If you’re engaged to someone out of town or you’ve got a better job offer in another state, you may want to move out of Chicago, Illinois with your child…whether the other parent likes it or not.
“Removal cases are difficult. This is especially so when neither parent demonstrates bad faith,” and that “[n]o matter the outcome, one party’s life will likely be affected detrimentally.” Ford v. Marteness, 368 Ill. App. 3d (2006)
An Illinois divorce court will always want to maintain the parent-child relationship for the parent who is getting left behind after the move. One of the purposes of the Illinois Marriage and Marriage Dissolution act is to “continue existing parent-child relationships, and secure the maximum involvement and cooperation of parents regarding the physical, mental, moral, and emotional well-being of the children during and after the litigation” 750 ILCS 5/102(7)(D)
Before 2016, the Illinois Marriage and Dissolution Act allowed a court to grant a custodial parent permission to remove a minor child from Illinois when it is in the child’s best interests. The parent seeking the removal had the burden of proving by a preponderance of evidence that the removal would be in the child’s best interests.
In Re Marriage of Eckert, 119 Ill 2d. 316, 326 outlined the factors that a court could use to help determine the best interests of the child:
- Likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child;
- The custodial parent’s motives for seeking removal (is this just a ruse to deny parenting time to the other parent?);
- The non-custodial parent’s motives for resisting removal (is the other parent objecting just to further frustrate their ex?);
- The effect removal will have on the noncustodial parent’s visitation right;
- Can a new visitation schedule after the move be both workable and reasonable?;
In 2016 the Illinois legislature enacted a new law, 750 ILCS 5/609.2, that provides a specific procedure by which a parent may seek to relocate with a child.
The first question is “how far is the move.” If the move is less than 25 miles away from the child’s current home, it does not count as a relocation and the parent may move without notice or permission.
The relocating parent must first provide notice “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.”
“The notice must provide at least 60 days’ written notice before the relocation unless such notice is impracticable (in which case written notice shall be given at the earliest date practicable) or unless otherwise ordered by the court. At a minimum, the notice must set forth the following:
(1) the intended date of the parent’s relocation;
(2) the address of the parent’s intended new residence, if known; and
(3) the length of time the relocation will last, if the relocation is not for an indefinite or permanent period.” 750 ILCS 5/609.2(d)
The other parent may agree to the relocation by signing the notice and then no further court order or action will be necessary. But if the other parent objects, the relocating parent must file a petition for relocation with the courts.
The other parent can always be expected to object as a relocations is always effectively a modification of parenting time.
The courts will use the following factors to determine if relocation is allowed and, if so, how the parenting agreement should be modified:
“(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(g)
No single factor is controlling in determining whether a relocation will be allowed. The factors “are to be considered and balanced by the [trial] court in arriving at a best interests determination, and the weight to be given to each factor will vary according to the facts of the case.” In re Marriage of Collingbourne, 204 Ill. 2d 498, 523 (2003).
Even parents with full or sole custody must follow these relocation rules.
“The parent seeking removal has the burden of proving, by a preponderance of the evidence, that removal would be in the child’s best interest.” In re P.D., 2017 IL App (2d) 170355
The parent seeking relocation has the “burden of production, in that the relocating parent must petition to relocate and produce evidence on the child’s best interests, and a burden of persuasion, in that the parent seeking relocation must obtain the trial court’s permission to relocate by convincing the court that it is in the child’s best interests to relocate.” In Re Marriage of Levites, 2021 IL App (2d) 200552
“[A] best interests determination cannot be reduced to a simple bright-line test and that a ruling on the best interests of a child must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” In re Marriage of Fatkin, 2019 IL 123602
The best interests of the child are interwoven with the best interests of the parents. “[I]n conducting a best interests inquiry in the context of a removal petition, a [trial] court must consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the [child]. (Emphases added.) [Citations.] Indeed, [i]f only the direct benefits that affected children were considered, rarely would a situation arise where removal would be permitted where children were in a good environment with good schools, good parents, and good friends. [Citation.] The vast majority of cases from our appellate court have correctly interpreted our decision in Eckert and, in determining the best interests of the child in removal actions, have appropriately considered the potential for the move for increasing the general quality of life for both the custodial parent and the child, including any benefit the child may experience stemming from the parent’s life enhancement. [Citations.] It follows that what is in the best interests of the child cannot be considered without assessing the best interests of the other members of the household in which the child resides, most particularly the custodial parent.” (Internal quotation marks omitted.) In re Marriage of Collingbourne, 204 Ill. 2d 498, 523 (2003)
“[S]ince a court has no power to require the noncustodial parent to remain in Illinois, or to require members of the extended family to remain in Illinois, some deference is due to the custodial parent who has already determined the best interests of her child [ ] and herself are served by remarriage and removal. The best interests of children cannot be fully understood without also considering the best interests of the custodial parent.” (Emphasis in original and internal quotation marks omitted.) In re Marriage of Collingbourne, 204 Ill. 2d 498, 523 (2003)
A significant improvement in the moving parent’s life would allow “the child w[ould] experience benefits with the increase in [their parent’s] quality of life” Ford v. Marteness, 368 Ill. App. 3d (2006)
In the end, what really matters is if the parent who is not moving can maintain a schedule with the child. “In all instances, removal will have some effect on visitation. The pivotal question is whether a reasonable and realistic visitation schedule can be created.” In re Marriage of Collingbourne, 204 Ill. 2d 498, 523 (2003).
Moving out of the Chicagoland area with your child is possible if you plan it correctly and frame it to the court as a benefit to the child (and even you). Contact my Chicago, Illinois law office to learn how this is done correctly.