It has been said that change is the only constant in life. Many changes occur following a divorce, and for some people this includes moving – whether it be to a new home, city, or even state. Moving can be difficult enough, but these decisions are even more nuanced when children of a divorced couple are involved. Unless the parents agree to the relocation and its effects on their parenting plan or allocation judgment, the parent wishing to relocate must obtain the court’s approval prior to moving with the child. In 2016, relocation laws in Illinois changed significantly, in many ways becoming more restrictive. A general overview of the process; requirements and the factors a court will consider in making a determination about the intended relocation are included here.
Who May Relocate?
Only a parent with equal or a majority of parenting time may seek to relocate with a child.
What is Considered “Relocation?”
The definition of relocation depends on where you live in Illinois:
- If a parent lives in Cook, DuPage, Kane, Lake, McHenry or Will County, relocation is a change of residence within Illinois that is more than 25 miles from the child’s current primary residence;
- If a parent lives in a county other than those listed above, relocation is a change of residence within Illinois that is more than 50 miles from the child’s current primary residence; and
- If a parent plans to move outside the borders of Illinois, relocation is a change of the child’s primary residence that is more than 25 miles from the current primary residence.
How Does a Relocating Parent Inform the Other Parent of the Intended Move?
When a parent intends to relocate, he or she must do the following:
- Provide written notice of the intended relocation to the other parent; and
- File a copy of the notice with the Clerk of the Court.
What Should the Notice Include?
Unless otherwise ordered by the court, the notice must be sent at least 60 days in advance of the intended relocation, unless such notice is impractical, in which case the notice must be sent at the earliest possible date. At a minimum, the notice must state:
- The intended date of the parent’s relocation;
- The address of the parent’s intended new residence, if known; and
- The length of time the relocation will last, if the relocation is not for an indefinite or permanent period.
What If Both Parents Agree to the Relocation?
If both parents agree to the proposed relocation, the non-relocating parent may sign the notice, and the relocating parent should file the signed notice with the court. If these steps are taken, the relocation will be allowed without any further court action. The court will then modify the parenting plan or allocation judgment to accommodate the relocation as agreed by the parents, so long as it is in the best interests of the child. Parents should be aware that while courts often accept the parties’ agreements regarding relocation, acceptance of your agreement relies on a finding that it is in the child’s best interests.
What If the Non-Relocating Parent Objects to the Relocation?
If the non-relocating parent objects to the relocation, or the parents cannot agree on modification of their parenting plan or allocation judgment, the parent seeking to relocate must file a petition seeking permission to relocate. The burden of proof to demonstrate what is best for the child is on the parent wishing to relocate. A “burden of proof” is a significant legal term meaning the evidence must be stronger for you than the other side’s case.
How Does the Court Decide Whether to Allow a Parent to Relocate with a Child?
Courts may consider both the direct and indirect benefits a child will receive as a result of the intended relocation in making its determination. At a minimum, the court must consider the following 11 factors in making its determination:
- The circumstances and reasons for the intended relocation
- 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 substantially failed or refused to exercise the parental responsibilities allocated to him or her under the parenting plan or allocation judgment
- The educational opportunities for the child at the existing location and at the proposed new location
- The presence or absence of extended family at the existing location, and at the proposed new location
- The anticipated impact of the relocation on the child
- Whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs
- The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation
- Possible arrangements for the exercise of parental responsibilities appropriate to the parents’ resources and circumstances and the developmental level of the child
- Minimization of the impairment to the parent-child relationship caused by a parent’s relocation
- Any other relevant factors bearing on the child’s best interests.
The court’s decision to approve a parent’s relocation is determined on a fact-intensive, case-by-case basis. When fought, these can be gut-wrenching, expensive cases, not to be taken lightly.
At Feinberg Sharma, P.C. we share the court’s interest in looking out for the best interests of children. We work diligently to resolve relocation matters, either by securing an agreement between parents or pursuing resolution in the courtroom. Call us at 312-376-8860, or email us at firstname.lastname@example.org.
© 2018 Madilyn Keating Ellsworth for Feinberg Sharma, P.C.