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| Home > Divorce Q&A's: (sect-Custody, Visitation & Removal) > Removal | |||||
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Removal (Relocation)- Moving With the Children to Another StateThe Gitlin
Law Firm, P.C., Woodstock, Illinois © 2008
Q:In my divorce I was awarded sole custody. I would like to move to another state. Do I need a court order allowing me leave to do so?A:Yes. Illinois law requires a custodial parent, who is seeking to move with the children to another state, to obtain court approval for the removal.
Q:What are the factors that the court considers in removal proceedings?A:The focus in removal proceedings is on the best interest of the children. The parent seeking to move the children out of state must prove it is in the children's best interest to allow the removal. The key factors the court examines in removal proceedings are the visitation rights of the non-custodial parent, whether a realistic and reasonable visitation schedule can be allowed if the removal were granted; the likelihood that the move will enhance the general quality of life of the custodial parent and the child; and the motives of each parent.
Q:What is more important in removal proceedings – the visitation schedule provided in the divorce decree or the parenting time actually exercised by the non-custodial parent?A:Both are important. I think there is an analogy to the parable of the talents. If a parent just exercised his limited weekend parenting time, it is not a plus for that parent in opposing a removal. However, if a parent is available and exercises considerably more parenting time than is allowed by the court order, I have found that this is a positive for a parent in contesting a removal.
Q:I have heard that it is more difficult in certain areas of the state to obtain leave to remove the children than it is in other areas. Is this correct?A:Not any more. Illinois is broken down into judicial districts. The Second Judicial District incorporates counties including McHenry County, Kane County, and Lake County, Illinois. Historically, the Second District was the most difficult area in Illinois from which to obtain a removal. This was because other areas allowed consideration of indirect benefits for the children. In counties such as McHenry County, Lake County, Kane County, and other counties in the Second District, direct benefits for the children due to the move had to be demonstrated. An example of such direct benefits may be the children attending better schools, the children being able to have a stay-at-home mother due to the move, etc. In May 2003, the Illinois Supreme Court decided a significant case addressing removal, IRMO Collingbourne. That case stated, "We recognize the importance of preserving a child's relationship with the noncustodial parent. However, as we set forth in Eckert and reiterated in Smith, this factor must be weighed against the enhancement of the quality of life for the child as a result of the remarriage of his custodial parent and the child's move to another state." In Collingbourne, a significant factor was that the overall parenting time following the proposed removal would be no less than the previous parenting schedule. Additionally, the reason for the proposed removal was that the mother's new husband worked out of state and in the new state the mother would be able to work fewer hours, etc.
Q:My lawyer tells me that in removal proceedings, the courts often “day-count,” that is, the court will compare the number of days my former husband visits now with the number of visitation days he would receive if the removal were granted. Is this correct?A:Illinois appellate court cases state that they reject the concept of day-counting. However, a number of cases have rejected removal applications when the parent seeking to move out of state with the children proposes visitation with a substantially reduced number of visitation days. The focus, however, is not just upon the number of days but also upon the frequency of contact. Most mental health professionals understand that with very young children, the frequency of contact by each parent is more important than the length of visitation. The visitation schedule proposed in the above noted Collingbourne case is of interest. The Court there stated, "Under the proposed visitation schedule, [the child] would visit [his father] for 8 to 10 weeks in the summer, 1 week at winter break in February, 1 week at spring break in April, during the Thanksgiving and Christmas breaks, and at any other times upon the agreement of the parties. The circuit court found that in comparing the two visitation arrangements, the actual time that [the child and his father] would be together was roughly equivalent." Another quote of interest in the Collingbourne decision in terms of "day counting" states, "We caution, however, that a proposed visitation schedule which provides a noncustodial parent with the same number of visitation days as under the prior visitation arrangement does not automatically lead to the conclusion that the quality of the visitation between the child and the noncustodial parent will also be the same. We emphasize that a circuit court must not only evaluate the quantitative change in visitation, but must also carefully assess the qualitative difference in visitation."
Q:What about extended families? Are they considered in removal proceedings?A:Yes. The focus is usually upon whether the children have frequent contact with their extended family members – for example, grandparents, aunts, uncles, etc. I have found that this is one factor that the court considers in removal proceedings – but it is usually not as important as the express factors discussed above.
Q:My children's father and I were never married and I was awarded sole custody. Do I need a court order allowing me leave to remove my children from Illinois?A:Until 2003, the technical answer to this question was no. However, Illinois law changed with Public Act 93-139, which 1) allows for an injunction prohibiting a party from removing a child from the state pending hearing on a petition for custody or visitation (including a modification petition) and provides that the provisions of Section 609 apply to determinations custody under the Illinois Parentage Act. The significant case addressing this law is the Illinois Supreme Court's decision Fisher v. Waldrop, 221 Ill. 2d 102; 849 N.E.2d 334; 302 Ill. Dec. 542 (Ill. 2006). This case addressed the language of the amendments which state, " [i]n determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the [Marriage Act], including [s]ection 609." (Emphases added.) 750 ILCS 45/14(a)(1)." Additional language of the Parentage Act provides, "In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation." The specific holding of the case was that, "We find that the legislature did not intend to shift the burden articulated in section 609(a) of the Marriage Act (750 ILCS 5/609(a) (West 2002)) to the party seeking an injunction under section 13.5 of the Parentage Act." Because the language of these amendments as well as the impact of the Fisher decision is complex, it is critical to consult with a lawyer, if there is any issue as to removal / relocation in Illinois paternity cases. Click here for an updated version of the original removal article which I co-authored (with Attorney Carl Gilmore, who wrote the article while associated with Gitlin & Gitlin and who now works with Guy Yeoman in Crystal Lake). A previous version of this article had accurately predicted that the Illinois Supreme Court would reverse the appellate court. It also predicated that the Supreme Court would allow consideration of what I call "indirect benefits" for the children.
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law Firm's practice is generally limited to McHenry County, Lake County, Kane County and Boone County, Illinois. The Gitlin Law
Firm, P.C. www.gitlinlawfirm.com
Updated: January 1, 2008
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