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"REMOVAL" - TAKING CHILD OUT OF ILLINOIS |
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I have "sole custody." Do I need the father's permission, or a court order, for my child and I to move to another state? |
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If I have joint custody can I block removal of the children from Illinois ? |
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Are state borders all that significant legally? |
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Is a court order always required in order to permanently remove children from the State of Illinois ? |
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Can the judge refuse to allow me and my child to move to another state when the move is my only practical alternative? |
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What is the basis for the court allowing children to be permanently removed from Illinois ? |
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What can I do to convince the court there should be a move? |
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I remarried and my new husband has a very significant career opportunity which requires a move to another state. Will the court allow me to take the children out of state? |
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Will a substantially higher salary for the step-father be considered a benefit to the child? |
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Does the child's preference in regards to removal count? |
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In order for the removal to be allowed, will the non-custodial parent be given longer blocks of visitation? |
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If the children are removed from the state, what sort of visitation can I expect? |
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Do these rules regarding removal of children apply to non-marital children where the other parent has visitation? |
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What is the impact of joint custody on the right to remove a child? |
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How long does it take to get the court's approval for removal of a child? |
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Is there a place I can read about the Illinois appellate court cases which allowed or disallowed removal? |
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| Q: |
I have "sole custody." Do I need the father's permission, or a court order, for my child and I to move to another state? |
| A: |
Absolutely. And it doesn't matter if it is sole custody or joint custody.
On its face it does not make sense that the custodial parent can move to Cairo , Illinois , (about an eight hour drive from McHenry County , Illinois , but the custodial parent cannot move from Harvard , Illinois to Lake Geneva , Wisconsin (about a 10 minute drive) without the court's authorization. |
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| Q: |
If I have joint custody can I block removal of the children from Illinois ? |
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No. Not on the basis of having joint custody. Joint custody does not give you veto power. |
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| Q: |
Are state borders all that significant legally? |
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Yes. For example, it would be very difficult to enforce an Illinois visitation order against a resident of Wisconsin . |
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| Q: |
Is a court order always required in order to permanently remove children from the State of Illinois ? |
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Yes, unless the original marital settlement agreement (incorporated into the divorce judgment) gave you permission to remove the children in the future. |
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| Q: |
Can the judge refuse to allow me and my child to move to another state when the move is my only practical alternative? |
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Yes. The judge can refuse. The usual factual basis for a request to remove a child from Illinois is that in the divorce the mother is granted custody of the child. The mother remarries. Her new husband is required by his employer to move to another state. There are, however, alternatives to allowing the mother and child to leave the State of Illinois . First, the mother and child do not make a move outside of Illinois , or the custody is transferred to the father if it is in the child's best interest. |
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| Q: |
What is the basis for the court allowing children to be permanently removed from Illinois ? |
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The best interest of the child. The Illinois Supreme Court, in the Eckert case, articulated specific factors that the court should consider in a removal case: (1) the likelihood that the move will enhance the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking to move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent in resisting the removal; (4) that it is in the best interest of the child to have a healthy and close relationship with both parents and therefore the visitation rights of the noncustodial parent should be carefully considered; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. |
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| Q: |
What can I do to convince the court there should be a move? |
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(1) There should be a good economic reason, that is, to show that the children's economic condition will improve by the move. (2) You should gather evidence (often available on the Internet) of the quality of education in the community. Also, if the children are involved in extracurricular activities in Illinois , the type of such activities which will be available to them in the new community |
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| Q: |
I remarried and my new husband has a very significant career opportunity which requires a move to another state. Will the court allow me to take the children out of state? |
| A: |
Yes, if you build a good case. The new husband's career move as a basis for wanting to move the children out of state is a typical reason for an application for removal. On the other hand the appellate court affirmed the trial court's denial of a mother's application for removal despite the fact that the husband's wages would go down if he did not move out of state because the drop in salary was not significant. |
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| Q: |
Will a substantially higher salary for the step-father be considered a benefit to the child? |
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Yes, but don't count on it carrying the day. This is the "indirect benefit" concept. It is a "trickle down" approach. If, however, the step-father's increased income allows the mother not to be employed outside of the home, this is a plus.
It is better to show direct benefits for the child, such as health benefits, better schools, closer to supportive family members (as when the mother moves back to her community of origin). |
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| Q: |
Does the child's preference in regards to removal count? |
| A: |
Just as in custody cases, the court should consider the wishes of the child, providing the child has a sufficient mental capacity to make an informed and intelligent choice and the choice is consistent with the child's best interest. |
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| Q: |
In order for the removal to be allowed, will the non-custodial parent be given longer blocks of visitation? |
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Yes. One of the Eckert factors is whether a good visitation schedule can be reached if the move is allowed. The ideal would be to give the non-custodial parent long blocks of time, instead of frequent blocks of time. Typically the total number of visitation days per year for the non-custodial parent will be in the range of 100 days. The goal should be to give the non-custodial parent as close to what he had before as possible. This usually means that the non-custodial parent should be offered the major part of the summer vacation. |
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| Q: |
If the children are removed from the state, what sort of visitation can I expect? |
| A: |
The fifth factor of the Eckert case is "whether a realistic and reasonable visitation schedule can be reached." Thus the custodian should offer liberal visitation. What happens when there is a move is that instead of frequent visitation (for example alternating weekends), the noncustodial parent will receive longer blocks of visitation. If I am representing the visiting parent I will count the number of days of visitation the visiting parent has per year and attempt to obtain the same number of days, but in long stretches. This ideal, however, can seldom be achieved because there simply is not enough non-school time of the children to allow it. What is typical is having the children on holidays when it is a four-day weekend, a substantial part of Christmas and spring breaks and a substantial part of the summer.
In 1988 the appellate court reversed the granting of permission for removal by the trial court. The reduction of the father's visitation time by 35% was a factor in reversing the trial court. |
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| Q: |
Do these rules regarding removal of children apply to non-marital children where the other parent has visitation? |
| A: |
Yes. Under a recent amendment to Illinois law the same rules apply to the removal of a non-marital child as apply to a child of divorced parents. |
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| Q: |
What is the impact of joint custody on the right to remove a child? |
| A: |
None, if you are referring to the usual joint custody, which is the right of the non-residential parent to participate in major decisions affecting the child. If, however, the parents share substantially equal time with the child, the parent seeking the move has a steep uphill fight. |
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| Q: |
How long does it take to get the court's approval for removal of a child? |
| A: |
Once both parents agree it is only a matter of several days until a court order for removal can be entered. If an agreement cannot be reached and the case must go to trial, probably the soonest the case will come to trial is five or six months, but (and especially if the non-custodial parent files a counter-petition for custody) the case may well take more than a year to come to trial. |
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| Q: |
Is there a place I can read about the Illinois appellate court cases which allowed or disallowed removal? |
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Yes, from Gitlin on Divorce: A Guide to Illinois Matrimonial Law, which is available at the McHenry County Government Center (Courthouse) law library. |
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For a free copy of a removal article, published in the Illinois Bar Journal, and written by Gunnar Gitlin and Carl Gilmore, send an addressed and stamped envelope to Gitlin & Kasper. |
