In previous publications, we observed that commuter marriages and removal cases are on the rise because of unemployment and job transfers to another state. Particularly in today's market, if the relocating parent can show a direct corollary between the proposed relocation with the child and the child's best interest, he/she might be allowed to move outside the state with the child, leaving the other parent behind. This requires parents to craft a new visitation schedule between the child and non-relocating parent. Depending on the distance between Illinois and the new state, the new schedule is likely to give the non-relocating parent larger blocks of time during school vacation periods and the summer to avoid the perpetual back and forth between states by the parents and/or child.
A custodial parent cannot just up and move out of state with a child because of a new job or other legitimate reason. Rather, a court order must be entered allowing the child's removal and establishing a new parenting schedule. If the parents do not agree to the removal, the party seeking the removal must take the issue to court, where there he/she faces a high burden.
The most important factors the court considers when evaluating removal cases are: (1) the likelihood of the proposed move to enhance the quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking to move; (3) the motives of the non-custodial parent in resisting; (4) the effect on the non-custodial parent's visitation rights; and (5) whether a realistic visitation schedule can be reached if the move is allowed. No one factor is controlling and the weight accorded to each depends on the facts of each case.
Courts are mostly reluctant to allow removal of a child, especially when the non-custodial parent has a close relationship with the child, exercises frequent and consistent parenting time, and the move will not improve the child's life. Even when there is evidence that the move will likely enhance the general quality of life for the custodial parent and child, the courts give great weight to the child's relationship with the non-moving parent and threat to their relationship caused by the move. In contrast, where a non-moving parent does not regularly exercise his/her parenting time or take advantage of the close proximity with the child, the court is more likely to question the legitimacy of the parent's motive in contesting the removal and, hence, more likely to grant removal.
Fathers of children born out of wedlock used to be at a distinct disadvantage in challenging removal of the child to another state with the custodial parent (usually the mother). It was not until 2003 that the Illinois Parentage Act was amended to make the removal provisions of the Illinois Marriage and Dissolution of Marriage Act apply to children born to unmarried parents. Even now there is a difference between the Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act, with the focus of an injunction hearing in a paternity case being on the parents' interests, rather than the child's. Nonetheless, the custodian still must seek permission of the court or the other parent before taking the child out of state.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
