Posted on February 10, 2024

Relocating With A Child To Live With A New Spouse After An Illinois Divorce

After a divorce, people move on. After a divorce, former spouses date and marry other people. Sometimes, they move very, very far away to date or marry other people.

Good luck to those who have found love again in a new community, new state or even a new country. However, if a moving parent has primary custody of a child…they are going to have a hard time as relocation with a child typically requires permission from the court that entered the original parenting plan.

There is a very detailed procedure in Illinois which does allow for relocation with a child to a new state.

“A parent who has been allocated a majority of parenting time or either parent who has been allocated equal parenting time may seek to relocate with a child.” 750 ILCS 5/609.2(b)

Is The Move Even Far Enough To Qualify As A Relocation?

Moving across the street does not require a custodial parent to do anything. Moving to another state clearly does require some kind of action with the court. Other moves between 25 and 50 miles may require a court filing to allow relocation with a child.

“Relocation” means: (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.” 750 ILCS 5/600(g)

If the move does not qualify as a “relocation” under 750 ILCS 5/600(g), just move and let the other parent know their drive to pick up their children for visitation will be that much longer.

The Notice Of Relocation

The first step for a would-be-relocating parent is mailing notice to the other parent and file a copy of that notice with the court that finalized their divorce and/or parenting action that they intend to relocate.

“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)

That notice must be very specific. The notice must state where you are moving, when you are moving and how long you will be there.

“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)

If the notice is faulty in any way, the court can use any error in the notice as a reason to deny relocation and even punish the would-be-relocator with a sanction.

“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)

If The Other Parent Agrees To The Relocation Of A Child After An Illinois Divorce

A parent cannot move with a child unless they have the written permission, per the statute, of the other parent. The other parent must sign the notice of relocation and have the signed notice filed in court.

“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. “ 750 ILCS 5/609.2

The parties should then file a new order modifying their parenting schedule to reflect the new move.

“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 Does NOT Agree To Allow A Child To Relocate After An Illinois Divorce

Parents enjoy seeing their children…even if those parents do not see their children every day. A parent who only exercises some parenting time still has the power to stymie a child’s move by refusing to sign the notice of relocation. Such a refusal requires the would-be-moving parent to file a petition to relocate in order to obtain the court’s permission to relocate with the child.

“If the non-relocating parent objects to the relocation, fails to sign the notice [of relocation]…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)

In theory, a parent who NEVER sees the child or a parent who does not even live in the child’s community could refuse to sign the petition to relocate and force the would-be-relocating parent to petition the court for permission to make the move…even though the move does not affect the other parent.

A petition to relocate requires an Illinois domestic relations court to evaluate a multitude of factors.

“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

If a parent is moving to be with a boyfriend, girlfriend, fiancé(e), or new spouse, a lot of these factors are very favorable to the would-be-moving parent.

“[T]he circumstances and reasons for the intended relocation” 750 ILCS 5/609.2(1), is certainly a good and noble circumstance and reason…true love.

“[T]he reasons, if any, why a parent is objecting to the intended relocation” 750 ILCS 5/609.2(2), allows the would-be-relocating parent to point out jealousy and pettiness of the other parent.

“[T]he 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” 750 ILCS 5/609.2, lets the would-be-relocating parent describe the other parent’s failure as a parent (the other parent must be the non-custodial parent for a reason).

“[T]he presence or absence of extended family at the existing location and at the proposed new location” 750 ILCS 5/609.2(5), allows the would-be-parent to describe their new out-of-town partner as a new family member. Although, it is hard to imagine that the new out-of-town family has more and deeper bonds than the existing family members in Illinois.

“[T]he wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation” 750 ILCS 5/609.2(8), allows the child themselves to opine on living with their new stepparent (this can be a dangerous factor).

In the end, an Illinois court’s relocation decision “‘cannot be reduced to a simple bright-line test.’ ” In re Marriage of Fatkin, 2019 IL 123602, ¶ 32 (quoting In re Marriage of Eckert, 119 Ill. 2d 316 at 326)

The new partner cannot be framed as a substitute for the other parent. The key to any successful relocation petition is the relocating parent’s willingness to allow the other parent to still engage in significant parenting time after the move.

[W]hether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs.” 750 ILCS 5/609.2, allows an Illinois court to properly mitigate any damage to the parent-child relationship that may occur after the move.

The other parent need not get equivalent time after the move. Quality time is sufficient.

“Any removal will have some effect on visitation, but the real question is whether a visitation schedule that is both reasonable and realistic can be created. It need not be perfect.” In re Marriage of Eaton, 269 Ill. App. 3d 507, 515 (Ill. App. Ct. 1995)

Parents who are moving with their new love are often blinded by that love. Parents in love consider that love will do for themselves, personally. The court really does not care how great your new spouse is and how in love with them you are. The court cares about the best interests of the child.

“As to the question of enhancement of quality of life for [parent petitioning to move] and [the child], we first note that a mere desire to move to another State, without more, is insufficient to show the move to be in the best interest of the child. The trial court found that petitioner intended to remarry and that her future husband lives and works in [another state]. Quite naturally, petitioner wishes to move to [the other state] to be with her new husband. However, simply because she would be happier living with him in [the other state] than living without him in Illinois does not in itself establish that the quality of [the child’s] life would be enhanced by a move to[to the other state].” In re Marriage of Davis, 229 Ill. App. 3d 653, 661 (Ill. App. Ct. 1992)

However, the custodial parent’s new relationship may benefit the custodial parent to such an extent that the child, in turn, benefits from the parent’s improved life situation.

“[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 would-be-relocating parent’s life would allow “the child [to] experience benefits with the increase in [their parent’s] quality of life” Ford v. Marteness, 368 Ill. App. 3d (2006)

The 750 ILCS 5/609.2(g) factors are not to be weighed equally by an Illinois court. Courts may weigh each factor with an individual importance.

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

In reality, the factor analysis boils down to whether the relocation is in the best interests of the child.

“In adjudicating a relocation petition filed under section 609.2(g) of the [Illinois Marriage and Dissolution of Marriage Act], the paramount consideration is the best interests of the children.” In re Marriage of Fatkin, 2019 IL 123602, ¶ 32.” Kenney v. Strang, No. 1-22-1558, 23 (Ill. App. Ct. 2023)

Any modification of a parenting plan under a petition to relocate is done with the child’s best interests as the court’s north star. “The court shall modify the parenting plan or allocation judgment in accordance with the child’s best interests” 750 ILCS 5/609.2

What If Relocation With A Parent Is Denied By An Illinois Court?

When attempting to relocate with a child, the burden of proof is on the relocating parent. “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 Marriage of Eckert, 119 Ill. 2d 316, 325 (Ill. 1988)

The relocating parent must prove the relocation is in the best interests of the child. If the parent cannot prove that the child should relocate with them, the parent is free to move…they just cannot take their child out of their home and school. The relocating parent must petition the court to modify the Allocation of Parenting Time And Parental Responsibilities to reflect the new reality that the parent will be living with their new spouse far away…even without their child.

It may make sense for a would-be-relocating parent to petition for a modification of parenting time at the same time as the petition for relocation. An additional petition to modify parenting time would show the court that the parent is absolutely going to move to be with their new partner and there is no third option where the parent stays in Illinois under the current parenting schedule.  

A motion to modify parenting time first requires the court to make a finding of a substantial change of circumstances. Permissionless relocation (or the desire to relocate) itself is NOT that prerequisite substantial change of circumstances. 

“Relocation without first obtaining leave of court is, by itself, not a sufficient ground to modify parenting time.” In re Marriage of Adams, 2017 IL App (3d) 170472

What If A Parent Moves Without Notice And/Or Permission?

Illinois will still be the jurisdiction where the other parent can ask that their parenting time be enforced and that the child be returned to Illinois.

If Illinois entered the original parenting plan, Illinois “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)

The statute appears to say that Illinois is going to ask for the child to come back to Illinois unless both parents do NOT live in Illinois.

The statute goes on to clarify that Illinois’ jurisdiction continues even if both parents no longer live 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(c)

“If a parent moves with the child 25 miles or less from the child’s current primary residence to a new primary residence outside Illinois, Illinois continues to be the home state of the child under subsection (c) of Section 202 of the Uniform Child-Custody Jurisdiction and Enforcement Act. Any subsequent move from the new primary residence outside Illinois greater than 25 miles from the child’s original primary residence in Illinois must be in compliance with the provisions of this Section.” 750 ILCS 5/609.2(h)

The only opportunity for a permissionless relocation with a child is before a divorce or parentage action begins.

Illinois will have jurisdiction of the child if Illinois is determined to be the “home state” of the child.

“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” 750 ILCS 36/102(7)

Illinois has jurisdiction over the child if Illinois 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

Therefore, there is a six-month window where a parent with no court order regarding the child can move out-of-state and still be brought back to Illinois by an Illinois court.

Once an Illinois divorce or parentage action has been filed within that six month period, Illinois jurisdiction attaches over a child in the relationship subject to the filing. An Illinois court with jurisdiction over the child can order the child be returned back to Illinois.

“A court may order the relocation of the child on a temporary basis before the entry of a final allocation judgment if it is in the best interests of the child. Any relocation shall be considered temporary in nature and shall not prejudice either parent in the allocation of parental responsibilities contained in a final allocation judgment. Any relocation shall be made in accordance with the protocol set forth in subsections (c) through (g) of Section 609.2.” 750 ILCS 5/603.5(a-5)

If the child has been out of Illinois for more than six months before anything has been filed in Illinois, the appropriate venue is now the new state.

States tend to be jurisdictionally jealous. The new state with its newfound jurisdiction will likely find that the children should remain in their new state.

As the Celine Dion sang, “Love Can Move Mountains”…but love cannot move a child without permission of the court. If you are planning a move with your child or your child’s other parent is planning to move contact an experienced Illinois family law attorney to discuss your matter with a free consultation.

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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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