Divorced or separated parents are sometimes surprised to learn that they can't just move away with their kids. When a parent wants to move away with a child, that's known as a proposed "relocation" under Illinois law. If you or your ex disagree about relocation, you'll have to follow a legal process that culminates in a judge's decision to allow or block the move.
If a parent has custody or visitation rights and spends at least half of the time with the children, that parent can ask permission to move and take the child along.
The first step is that a parent who wants to move has to give the other parent written notice of the relocation plans. Written notice must include:
The relocating parent has to give notice at least 60 days before the planned move, unless 60 days isn't practical under the unique facts and circumstances of the case. If a planned move is unavoidably urgent, the relocating parent still has to provide notice as soon as possible.
Notice has to be filed with a clerk of the district court. If there's a history of domestic violence or family abuse, the court might protect the victim by sealing (keeping confidential) any sensitive or personally identifying information.
If you want to move away with your child, it's very important to follow all the notice rules. If you don't have good cause for failing to comply, the court can punish you later. The judge can:
When non-relocating parents receive the notice, they have a choice:
When the relocating parent files a petition, the court can schedule an evidentiary hearing to decide what to do. Both sides can call witnesses, present evidence, cross-examine the other parent's witnesses, and dispute the other parent's evidence.
The most important question the judge will ask is whether the proposed move is in a child's best interests. If it's not, the court won't allow the parent to take the child away. But if the judge concludes that the move is what's best, the court will issue a new custody and visitation order that "reallocates" (re-assigns) parenting responsibilities for the child's education, health, religious life, and extracurricular activities. A child's best interests are the paramount concern in every custody and relocation case.
The burden of proof is on the parent who wants to relocate to show that the move is best for the child. Judges make custody and relocation decisions on a case-by-case basis, depending on the unique facts and circumstances of each case.
Sometimes, a parent will ask to move before the judge has issued an initial (first) custody order. The initial order always has to take into account:
If a court has already issued a custody and visitation order (known as the "existing order"), the parent has to wait at least two years before asking to modify it unless there's an emergency. The judge can then modify an existing order if there's been a substantial change in circumstances, meaning that there's been a major, fundamental change in the child's or the parent's life. Illinois courts have ruled that a relocation is a substantial change of circumstances.
Regardless of whether a judge is issuing an initial or existing order, the court always has to consider the following information when deciding whether a parent can relocate:
Each parent can call witnesses and submit evidence to the court, and each parent can cross-examine the other side's witnesses and criticize the other parent's evidence. After the hearing, the judge will issue an order allowing or blocking the move.
Appellate courts in Illinois have had many opportunities to rule on whether relocations are permissible. They have decided, among other things, that:
If you have custody or visitation rights and you want to move out of Illinois with your children, or if your ex has custody or visitation rights and wants to take your children away against your wishes, you should contact an experienced Illinois family law attorney to assess your situation and advise you about your rights and obligations.