Oct 29, 2010

Five Factors the Court Considers When Relocating Out of State With Children

Commuter marriages and removal cases are on the rise because of unemployment and job transfers to other states. Particularly in today’s market, a relocating parent who can show a direct corollary between the proposed relocation with the child and the child’s best interest might be allowed to move outside the state with the child, leaving the other parent behind. Such a situation 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 perpetual travel back and forth between states by the parents and/or the 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,  that parent must obtain a court order allowing the child’s removal and establishing a new parenting schedule. If the issue cannot be resolved in an agreed order, 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 will enhance the quality of life for both the custodial parent and the child
  2. The motives of the custodial parent in seeking to move
  3. The motives of the noncustodial parent in resisting;
  4. The effect on the noncustodial parent’s visitation rights
  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 factor depends on the facts of each case.

Courts are generally reluctant to allow removal of a child, especially when the non-custodial parent has a close relationship with the child, and exercises frequent and consistent parenting time, and the move will not improve the child’s life. Even when evidence shows 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 the threat to their relationship caused by the move. On the other hand, where a non-moving parent does not regularly exercise parenting time or take advantage of the close proximity with the child, the court is more likely to question the legitimacy of that 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 his child to another state by the custodial mother. Not until 2003 was the Illinois Parentage Act amended to make the removal provisions of the Illinois Marriage and Dissolution of Marriage Act apply to children born to unmarried parents. However, there is still a difference between the removal provision in the Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act.  Removal cases involving unwed parents take the form of injunction proceedings that focus on the parents’ interests, not the child’s. Nonetheless, the custodian still must seek permission of the court or the other parent before moving with the child out of state.

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