Child Custody and Relocation Laws in Illiniois

What happens when one parent wants to relocate with the children after a divorce?

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.

What happens if a parent wants to relocate with the children?

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 date of the intended move
  • the address of the proposed new residence, and
  • the length of time the relocation will last, if it won't be indefinite or permanent.

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:

  • hold your noncompliance against you when deciding whether the move is based on good faith, and
  • use your noncompliance as the basis to make you pay your ex's attorney's fees and court costs.

When non-relocating parents receive the notice, they have a choice:

  • They may consent to the move. If they consent, they will sign the notice and file it with the clerk of court. Then, the family court will issue a custody and visitation order that accommodates the parents' new agreement.
  • They may object to the move and refuse to sign the notice. Then, the parent who wants to relocate has to file a petition (written request) with the court asking for permission to move.

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.

How does the court decide whether to allow a parent to relocate?

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:

  • the child's wishes, taking into account the child's maturity and ability to express a rational and independent opinion
  • the child's adjustment to home, school, and community
  • the mental and physical health of everyone involved in the case
  • the parents' ability to cooperate with each other or whether their relationship is acrimonious
  • how much each parent participates in making decisions for the child
  • any prior child-rearing agreement or conduct between the parents
  • the wishes of the parents
  • the child's needs
  • the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and child's daily schedules, and the ability of the parents to jointly manage schedules and transportation
  • whether a parent should be restricted in making important decisions about a child's life
  • whether each parent is willing and able to encourage the child to have a close, continuous relationship with the other parent
  • whether either parent has threatened or exhibited physical violence against the child
  • whether the child, or someone else in the child's household, has been abused
  • whether one of the parents is a sex offender, and if so, the nature of the offense and whether it's been successfully treated, and
  • any other relevant factor.

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:

  • the circumstances and reasons for the intended move
  • the reasons, if any, why a parent is objecting to the intended relocation
  • the history and quality of each parent's relationship with the child, and specifically whether a parent has failed or refused to assume parental responsibility
  • the educational opportunities for the child at both the existing and proposed new residences
  • the presence or absence of extended family at both the existing and proposed new locations
  • the anticipated impact of relocation on the child
  • whether the court will be able to fashion a reasonable division of parenting responsibilities if the relocation occurs
  • the wishes of the child, depending on the child's age, maturity, and ability to express a rational and independent preference
  • possible arrangements given each parent's resources (including financial resources) and the child's developmental level
  • the extent to which a parent-child relationship will be diminished if the move is allowed, and
  • any other relevant factors that may shed light on the child's best interests.

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.

How have Illinois courts decided relocation cases in the past?

Appellate courts in Illinois have had many opportunities to rule on whether relocations are permissible. They have decided, among other things, that:

  • judges can consider the general quality of a child's life if the relocation is allowed, as well as the motives of the relocating parent and of the objecting parent
  • if a parent is asking to relocate so the parent can marry a new romantic partner, the court has to consider any benefits that will flow to the children from the new marriage
  • custodial parents shouldn't be expected to give up their careers solely for the sake of remaining in the same geographic location,
  • the court should consider the extent to which a proposed relocation will enhance a child's life, and
  • a child has a vital interest in having extensive contact with both parents.

Next steps

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.

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