When people get divorced they move on. Some parents really move on…to other states. When a parent chooses to move to another state during or after the divorce, they’ll need to make a parenting time schedule and parental decision-making order (formerly known as custody) to accommodate that move and their children’s best interests.
Illinois Divorce Judgments and Out-Of-State Parents In Illinois
A divorce will begin in the most appropriate venue (state and county of the divorce court). The most appropriate venue is always the venue where the children live and will continue to live.
Wherever the children have been living over the past six months will determine which state will determine their custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
“[A] court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State” 750 ILCS 36/201
Additionally, the parent who lives with the children can say file a Motion For Forum Non Conveniens claiming that the children live in their venue so the divorce (and all the non-child related matters in a divorce) should proceed in that venue.
In a Motion For Forum Non Conveniens for an Illinois divorce, a court will consider “[T]he convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020
An Illinois court, once it has jurisdiction, can begin making decisions about the children’s parenting time and the parent’s decision-making responsibilities.
It must be noted that Illinois domestic relations courts strongly prefer that parents come to an agreement on parenting time and parental decision-making. Especially in cases where a parent moves out of state. The courts will even preserve Illinois jurisdiction in order to further such an agreement.
“Parents who live in separate jurisdictional forums should be encouraged to negotiate extended out-of-state visitation agreements for their children. The freedom to reach such agreements should not be hampered by fear that jurisdiction would vest in another state if the out-of-state absence extends beyond six months. Any such fear would have a chilling effect on the formation of any such agreements; and family bonds would suffer.” In re Frost, 681 NE 2d 1030 – Ill: Appellate Court, 1st Dist., 3rd Div. 1997
Parenting Time For Out Of State Parents During And After An Illinois Divorce
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors” 750 ILCS 5/602.7
The factors that determine parenting time include:
“[T]he child’s adjustment to his or her home, school, and community” 750 ILCS 5/602.7(a)(6)
and
“[T]he distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement” 750 ILCS 5/602.7(a)(9)
The out-of-state parenting schedule is almost always the same. The out-of-state parent will get half or more of the summer, every other Thanksgiving, an alternating half of the winter break, every Spring break, and every 3 day weekend that the child’s school schedule allows.
Of course, the parents can agree on any schedule they please but it’s hard to imagine any other schedule that would accommodate the children’s Illinois school schedule.
All this interstate travel for children is expensive. The costs may be split by the parties by agreement or court order. While there is no law that allows court-ordered contribution to children’s travel expenses, Illinois courts are inclined to make the parent who left the state be responsible for the travel expenses.
Parental Decision Making For Out-Of-State Parents After An Illinois Divorce
In deciding which parent makes what decision for the children, the courts must use the Illinois’ statute’s identical language.
“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including…[T]he distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement” 750 ILCS 5/602.5(c)(9)
Practically, an out-of-state parent can expect to make joint decisions with the other parent…if the parents are able to communicate.
If the parents are not able to communicate effectively about their children’s best interests, the parent who lives in Illinois will control the decisions related to the children’s education, extracurriculars, health care and religion.
Enforcing An Illinois Child Custody Order In Another State.
If a parent takes a child out of Illinois and then does something to violate the Illinois’ parent’s trust or does something else that is not in the child’s best interest, the Illinois parent may immediately file a motion to modify the parenting time.
“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
A parent who cannot follow an Illinois order outside of the jurisdiction of the state of Illinois can expect to never be allowed to remove their children from Illinois until that parent has assured the court that they will follow the order in the future.
Furthermore, a violation of an order will result in a finding of contempt of court which requires mandatory repayment of the other parent’s attorney’s fees.
The power of an Illinois court may not ring clearly in the ears of a parent who has no intention of returning the children to Illinois. Furthermore, the police in some states and counties don’t take Illinois custody orders at face value…until the Illinois custody order is registered locally.
Once an order regarding children is made in Illinois (or any other state in the Union), that order will be observed and enforced by every other state.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, sec. 1.
A local attorney will be needed to file a motion to register the Illinois custody order as a foreign judgment and then enforce that order through the local court system.
Moving Out Of State With Children From Illinois
Moving the children out of state is a completely different animal. While, an Illinois court can do nothing to prevent an adult from moving to a different state, an Illinois court MUST grant permission to a parent to move the children to another state.
“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)
“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.” 750 ILCS 5/609.2(c)
“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. The court may consider a parent’s failure to comply with the notice requirements of this Section without good cause (i) as a factor in determining whether the parent’s relocation is in good faith; and (ii) as a basis for awarding reasonable attorney’s fees and costs resulting from the parent’s failure to comply with these provisions.”750 ILCS 5/609.2(d)
Then the other parent must agree to the relocation or the Illinois court will get involved.
“If the non-relocating parent signs the notice that was provided pursuant to subsection (c) and the relocating parent files the notice with the court, relocation shall be allowed without any further court action. The court shall modify 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.” 750 ILCS 5/609.2(e)
If the other parent doesn’t agree to the relocation (this includes simply not responding to the notice), then the relocating parent must go to court to ask permission to relocate.
“If the non-relocating parent objects to the relocation, fails to sign the notice provided under subsection (c), or the parents cannot agree on modification of the parenting plan or allocation judgment, the parent seeking relocation must file a petition seeking permission to relocate” 750 ILCS 5/609.2(f)
The Illinois court will then decide whether it is in the best interests of the children to be moved outside of Illinois…and away from the other parent.
“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(g)
Illinois courts do not lightly allow for relocation of children. One of the stated 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)
The court’s primary concern with keeping both parents in the lives of their children will virtually guarantee the parent left behind as much parenting time as they can feasibly allow should a relocation be granted.
Transferring Venue Of A Child Custody Case Out Of Illinois And To A New State
If the children do move to a new state after an Illinois child custody order is entered, that does not mean the new state automatically has jurisdiction over the children.
“[A] court of this State which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child’s parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.” 750 ILCS 36/202(a)”
Illinois will remain the home state where custody matters will be decided and modified until both parents move out of Illinois
This makes sense. Otherwise, a parent could just move to a new state semi-secretly (long vacation) and then declare that the new state is where the custody will be determined, using favorable laws in the new state and inconveniencing the other parent who already agreed that Illinois was the home state.
Even if the move was done properly with proper notice and permission, the jurisdiction of child custody will stay in Illinois so long as their is an existing custody order in Illinois.
“A court of this State shall continue to exercise exclusive jurisdiction and be considered the home state of a child if a parent moves with a child under subsection (h) of Section 609.2 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 36/202(d)
Moving out of Illinois is more and more common. If you are moving out of Illinois or your child’s parents are, you need to modify your parenting agreement. If you are moving out of Illinois with your children or your child’s other parent is moving out of Illinois with the children, you must rush to the courthouse to preserve your rights as a parent. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois divorce attorney.
