26 Nov Removing Children From the State in Parentage and Divorce Cases
Few people dispute that it is in the best interest of children to have both fit parents actively involved in their lives. In an ideal world, that would involve co-parenting and parents sharing time and opportunities to be a consistent and supportive presence in their children’s lives. Sometimes, however, situations arise for one of the parents that can lead to a change in the parenting arrangement. A parent can be offered an opportunity to move out of state for employment or to accompany a new spouse for a new job or job reassignment.
When parents residing in Illinois disagree on one parenting moving out of state with the child(ren), the parent wishing to move must seek approval from an Illinois court.
In some cases, a mediator may help the parents find a solution that works for everyone. However, the reality is that the parent remaining in Illinois will usually be left with much less parenting time or exercising parenting time will become much more costly and for these reasons, parents usually come to an impasse on the subject of removal. If litigated, a judge will consider the totality of the situation, including but not limited to the age of children involved, their preference (if of sufficient age), the opportunities for the parent in the new state, the opportunities for the child(ren) in the new state, the effect on the current parenting schedule, the financial impact travel will have on the noncustodial parent, the presence of extended family in the new state, and any other factor that the Court determines is relevant to the best interest of the child. The burden of proof that the move is in the best interest on the child(ren) is on the party wishing to move.
Illinois provides statutory guidelines for removal cases and case law has provided additional clarification in interpreting the statute.
The Illinois Marriage and Dissolution of Marriage Act (IMDMA) states in pertinent part as follows:
“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” 750 ILCS 5/609(a)
The factors the court will consider in deciding permanent removal cases are as follows[i]:
- The likelihood for enhancing the general quality of life for both the custodial parent and the children;
- The motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation;
- The motives of the noncustodial parent in resisting the removal;
- The best interests of a child to have a healthy and close relationship with both parents, as well as other family members; and
- Whether a realistic and reasonable visitation schedule can be reached if the move is allowed.
For more information about temporary or permanent requests to modify a parenting agreement to allow for the removal of a child from Illinois, please contact Jennifer Guimond-Quigley.