INTRASTATE REMOVAL AND ILLINOIS CASE LAW
By: Gunnar J. Gitlin
The Gitlin Law Firm, P.C., Woodstock, Illinois
© 2008
www.gitlinlawfirm.com
By Gunnar J. Gitlin
Even in light of the Collingbourne decision, Illinois law is restrictive in terms of the ability of parents to seek removal. The threat heard by Illinois lawyers in McHenry County and Lake County, where I practice, (which border Wisconsin) is that if the other spouse refuses to agree is that if there is not an agreement to move to Wisconsin, etc, then the person will move downstate - to Cairo Illinois. Cairo is the southern most city in Illinois - which has a border with southern Kentucky. Driving distance is approximately seven hours. Illinois is a large state which has borders on five states. In fact, 40 of the 102 counties in Illinois border other states. The question that often arises is whether the parties can agree that a party cannot move beyond a certain distance. Often such agreements are reached as a result of joint parenting agreements where parenting times is shared on a relatively equal basis. The goal in such agreements is to allow the parties to continue to share parenting time and thereby restrict the ability to move outside a certain geographic distance - whether measured by driving time, most direct road miles, counties, school districts, etc. The question is whether such agreements are enforceable. There are several Illinois cases which will be addressed:
IRMO MEANS
A 2002 case to address the issue of intrastate removal was IRMO Means, 329 Ill. App. 3d 392, 395, 771 N.E.2d 501, 504 (4th Dist. 2002). It held that a joint parenting agreement which requires the parties to jointly decide what major issues concerning the children's "education, religious training and extraordinary healthcare" does not prohibit the custodian from removing the child intrastate.
In Means, a September 2000 Sangamon County divorce judgment incorporated the parties' joint-parenting agreement. The agreement stated that "the parties shall jointly decide all major issues concerning the children's education, religious training and extraordinary health care." In April 2001 the mother filed a "motion to modify visitation," alleging that she was originally from McHenry, Illinois, and that she desired to relocate there with the children. On April 11, 2001 the father filed a "petition to modify judgment of dissolution of marriage seeking an increase in his periods of physical custody." The trial court found that the father had overnight "custody" on alternate weekends and holidays and two weeks during the summer; that a practice developed of the father keeping the boys overnight on Tuesday and Thursday; and that the father spent other time with the boys and "spends nearly as much time with the boys as does (the mother)." The trial court, applying an analysis similar to the removal provisions under section 609 of the IMDMA, determined that McHenry County is a three-and-a-half-hour drive from Springfield, and the mother's financial circumstances would be improved only slightly if at all (apparently applying the Eckert, 119 Ill.2d 316, 116 Ill.Dec. 220, 518 N.E.2nd 1041 (1988) removal factors). The trial court ruled against the mother, finding she did not meet the burden to establish that a modification of the "custodial schedule" is in the children's best interests. The mother appealed. The appellate court reversed and remanded. The actual decision of the appellate court was based on the language of the joint parenting agreement.
The mother's argument on appeal was that it is not necessary for a custodial parent, or a parent with the primary physical custody of a child, to obtain permission from a court before moving to another location in Illinois, citing IRMO Wycoff, 266 Ill.App.3d 408, 203 Ill.Dec. 338, 639 N.E.2d 897 (4th Dist. 1994), GDR 94-10, which held: "It is not necessary for a custodial parent, or a parent with the primary physical custody of a child, to obtain permission from a court before moving to another location in Illinois." The Means opinion, however, states: "Wycoff did not address the issue presented in this case, whether the parties may enter into a joint-parenting agreement which restricts the right of the primary physical custodian to move within the state and whether the agreement here incorporated such a restriction."
In developing its rationale, the Means opinion points out that the joint custody statute, Section 602.1 of the IMDMA, states that the joint parenting agreement may address "each parent's powers, rights and responsibilities for the personal care of the child, and for major decisions, such as education, health care and religious training." Means suggests that these provisions are limitations as to what a joint parenting agreement may control. Citing case law Means states that a joint parenting agreement (JPA) cannot supercede or modify the child support provisions of the IMDMA.
The case commented that a joint parenting agreement also cannot supercede the ability to remove a child from Illinois under Section 609 of the IMDMA -- that is, a joint parenting agreement cannot prohibit a parent from being able to seek removal (citing In re Marriage of Yndestad, 232 Ill. App. 3d 1, 7, 597 N.E.2d 215, 219 (1992)). However, the decision stated that the converse is probably not true -- that the parties can agree to the primary physical custodian being able to remove the child from the state without seeking judicial permission. Means quotes the language of the joint parenting agreement which limited the joint decision making to "education, religious training and extraordinary health care." The agreement did not, even inferentially, address intrastate removal. Means cites Section 608(a) of the IMDMA, which gives the custodial parent the right to determine the child's "upbringing, including, but not limited to education, health care and religious training" and concludes that this statute authorizes the custodian to move anywhere in the State of Illinois. The specific language of the decision which discusses this issue states,
"The list is not exclusive, but without specific language in the agreement it is unlikely an agreement will be extended outside those areas. The remarriage of either parent may have a profound effect on the children, but it is unlikely the courts would ever construe a joint-parenting agreement to require mediation and court review of a parent's decision to remarry. The same is true of a parent's decision to take a better job, which may reduce the time which the parent spends with the children, or a parent's decision to change religions, which of course may affect the children's religious training."
Justice Robert Cook, the author of the Means opinion, used the opinion as an opportunity to review what can and cannot be properly governed by a joint parenting agreement. Below is the Cook review.
Language to Restrict Intrastate Move: In IRMO Findlay, 296 Ill.App.3d 656, 231 Ill.Dec. 31, 695 N.E.2d 548 (2d Dist. 1998), GDR 98-65, the JPA stated that the parties "will jointly decide matters of substance regarding the children, including, without limitation intended, important questions of education, religion and elective medical care." The appellate court in Findlay ruled that the language of the JPA was ambiguous, for the proposed move of the children to be construed to be a "matter of substance regarding the children." There is, however, no such broad language in Means.
Intrastate Move, No Need to Court Order: The Wycoff opinion, relied on by the mother, was written by Justice Cook in 1994 and ruled: "It is not necessary for a custodial parent, or a parent with the primary physical custody of a child, to obtain permission from a court before moving to another location in Illinois."
Removal Outside Illinois Covered by IMDMA 609 Despite Contrary JPA Provision: The IRMO Yndestad opinion, 232 Ill.App.3d 1, 173 Ill.Dec. 507, 597 N.E.2d 215 (2d Dist. 1992), GDR 92-94, cited by Justice Cook, was a 1992 Second District case in which the JPA stated that the mother, the primary custodian, will continue to reside within a fifty mile radius from her present residence, but the mother filed a petition to remove the child from Illinois. The opinion concluded that "petitions to remove a child from Illinois are governed by section 609 * * * despite any provisions in a joint parenting agreement purporting to limit the right of removal."
Reasonable Restrictions on Intrastate Relocation: The case of Manuele, 107 Ill.App.3d 1090, 63 Ill.Dec. 760, 438 N.E.2d 691 (4th Dist. 1982) was cited for the proposition that JPAs may impose reasonable limitations upon the custodian's choice of residences. In Manuele the trial court, in order to assure the father's visitation, required the mother to continue to reside in Sangamon County. The Maneule opinion ruled that protection of the father's rights of visitation would justify a reasonable residential restriction as a condition of the mother receiving custody of the children, however, Manuele also ruled that the limitations of the residence to Sangamon County was unreasonably restrictive and instructed the trial court, on remand, to reconsider this matter.
IRMO SEITZINGER
Another 2002 case to address the issue of intrastate removal was IRMO Seitzinger, 333 Ill.App.3d 103 (4th Dist. 2002). This case held that the trial court's conditioning mother's physical custody on her living in a two county area was reversed because such ruling was not made on the basis of the child's best interest.
The Seitzinger appellate court agreed that the physical custody award to the mother was appropriate, but reversed the trial court's conditioning the mother's primary physical custody and the parties' having "joint" (decision making) custody on the parents remaining in Sangamon or Cass County. The opinion pointed out that IMDMA Section 608 states:
Except as otherwise agreed by the parties in writing at the time of the custody judgment, or as otherwise ordered by the court, the custodian may determine the child's upbringing ***.
The appellate court was of the opinion that the trial court's order, automatically changing the primary physical custody or terminating joint parenting upon either parent moving from Sangamon or Cass County, without consideration of the best interest of the child, was an abuse of discretion. The court of review pointed out: "Here, the restriction of (the mother's) residence to Sangamon or Cass County is arbitrary if the purpose is ease of visitation. Geographical location is not per se determinative of ease of visitation. Ease of transportation may be just as important."
In so ruling, the appellate court reasoning first pointed to the language in Section 608(a) which provides that, "Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child's upbringing ***." (Emphasis added.) 750 ILCS 5/608(a)." Then the court stated:
As we recently noted in In re Marriage of Means, 329 Ill. App. 3d 392, 395, 771 N.E.2d 501, 504 (2002), two aspects of this language are significant: (1) the custodian has broad power to determine the child's upbringing, including residence; and (2) the parties may agree otherwise or the court may order otherwise.
The joint-parenting agreement in this case did not place a restriction on Kimberly's residence, but the trial court did so in its order. A trial court has broad powers in custody matters, including conditioning custody upon a custodian living within a reasonable distance from the noncustodial parent so visitation may be facilitated. In re Marriage of Manuele, 107 Ill. App. 3d 1090, 1096, 438 N.E.2d 691, 695 (1982). The trial court in Manuele conditioned physical custody under an award of joint custody upon the children continuing to "reside in the Springfield" area, which was defined in the custody order as being within Sangamon County. Manuele, 107 Il. App. 3d at 1092, 438 N.E.2d at 692. On appeal, we found the limitation of residence to Sangamon County to be unreasonably restrictive. Manuele, 107 Ill. App. 3d at 1096, 438 N.E.2d at 695. (Emphasis added.)
The appellate court then discussed the trial court's tying the award of primary residential care with the mother's living in the two county area and stated:
More important, however, the trial court erroneously conditioned not only Kimberly's primary physical custody of Sabrina on her remaining in Sangamon or Cass County but also the continuation of joint custody. The trial court's order, as to both parties, was contingent solely on geography because joint custody terminated upon Roger's or Kimberly's removal from Sangamon or Cass County. The custody status of a minor child should not change automatically with the removal of a parent from his or her present location. Instead, the best interests of the child should be considered when a change of custody is anticipated.
Section 610 of the Dissolution Act provides for the modification of joint custody judgments upon a finding by clear and convincing evidence of facts that have arisen since the prior judgment, that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. 750 ILCS 5/610(b) (West 2000). Even the move out of state of the parent having primary physical custody under a joint parenting order, while obviously a change of circumstances, does not necessarily provide grounds for termination of a joint parenting order, or the change of one primary custodian for the other, if it is not in the best interest of the child. In re Marriage of Good, 208 Ill. App. 3d 775, 778, 566 N.E.2d 1001, 1002-03 (1991).
Joint parenting is a tool to maximize the participation and responsibility of both parents in a child's life. It need not be automatically terminated upon the removal of one parent from close geographical proximity from the other. Thus, we find that portion of the trial court's order automatically changing the primary physical custodian or terminating the joint parenting order upon the removal of either parent from Sangamon or Cass County, without consideration of the best interests of Sabrina, to be an abuse of discretion, and we reverse that condition.
OTHER CASES AROUND THE NATION
The above case law is consistent with national case law addressing the issue. Where the proposed move is within the same state, such moves are usually permitted.
In 1996, the Indiana appellate court reversed a transfer of primary physical custody to the father based on the mother's in-state move in In re Marriage of Van Schoyck, 661 N.E.2d 1 (Ind. Ct. App. 1996). Four years after the divorce, the mother had moved to another city to live with her boyfriend and his parents. The Indiana appellate court held that the father had failed to demonstrate a change in circumstances warranting a custody modification. The father's desire for the child to remain in the same school district was an insufficient basis for a custody transfer.
Similarly the Missouri appellate court in Basler v. Basler, 892 S.W.2d 749 (Mo. Ct. App. 1995), reversed a transfer of primary physical custody to the father based on the mother's in- state move. The move occurred six years after the divorce when the mother remarried and moved to another county. Although the divorce decree provided that a move by either party outside a three-county area could justify a change of custody, the court did not believe that a move from southeast to central Missouri was significant enough to warrant a custody transfer. See also Wycoff discussed above, (reversing custody transfer based on primary physical custodian's in-state move); Peyton v. Peyton, 614 So. 2d 185 (La. Ct. App. 1993) (with the same general holding and Wycoff); Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996) (reversing trial court's denial of sole custodian's request to move in- state); and Bingham v. Bingham, 811 S.W.2d 678 (Tex. Ct. App. 1991) (affirming grant of primary physical custodian's petition to relocate to another county).
When the judgment for dissolution of marriage prohibits a move outside a certain area, however, some courts have enforced the restriction even if the move is to another area in the same state. In Cohn v. Cohn, 658 So. 2d 479 (Ala. Civ. App. 1994), the separation agreement incorporate into the divorce judgment gave primary physical custody to the mother but restricted her residence to the county. When the mother planned to move to a distant city in the same state, the father sought to modify custody. The trial court denied the request but enjoined the mother from changing the children's residence outside the county. In affirming, the Alabama appellate court held that enforcement of the parties' agreement was proper. Additionally, the Alabama appellate court held evidence supported the trial court's finding that removal from the county would not be in the children's best interests. The Cohn court found that the children had lived their entire lives in the county and had a large extended family there. Of interest is the fact that the extended family issue is a consideration based upon the removal standards of Eckert. For another case upholding a restriction see Wood v. O'Donnell, 894 S.W.2d 555 (Tex. Ct. App. 1995). This case reserved the grant of permission to the primary physical custodian to move to another county when the parties' incorporated agreement restricted the custodian's residence to the same county.
CONCLUSION
Case law creates or at least suggests the following rules:
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Last Updated: January 3, 2008