Illinois law calls moving more out of the state with minor children (or a significant distance within the state) “relocation.” The law regarding relocation changed dramatically in 2016 and this law applies to the child’s current primary residence.
How far can the child’s primary caretaker move without seeking permission?
Illinois law has different mileage restrictions depending on whether one is in a collar county or is living “downstate.” Collar counties are defined as Cook County, DuPage County, Kane County, Lake County, McHenry County, or Will County. Under current Illinois law, when the child’s primary residence is in a collar county to another residence in the state greater than 25 miles, this is a prohibited relocation. For those outside of these collar counties, there is a 50-mile rule. Also, when the child’s current primary residence is changed to move outside of the Illinois borders by more than 25 miles from the child’s current primary residence, this is a prohibited relocation.
How do we measure the number of miles for a move?
You measure the move by “an internet mapping service.” Illinois law does not state which internet mapping service. But it is road miles and not as-the-crow-flies miles.
What do I have to do if I want to move outside of this mileage restriction?
For a relocation beyond these boundaries, the parent who has equal or primary parenting time must jump through the hoops that apply to relocation cases.
What is the first step?
The parent intending a location must provide written notice to the other parent. A copy of the notice must be filed with the clerk of the court.
When does the notice need to be provided?
It must be provided at least 60 days before relocation. There is a narrow exception for when the minimum 60-days notice is “impracticable” but in that event notice must be given at the “earliest date practicable.”
What if I don’t give notice within the time frame and just move?
The law provides:
The court may consider a parent’s failure to comply with the notice requirements of this Section without good cause:
(i) as a factor in determining whether the parent’s relocation is in good faith; and
(ii) as a basis for awarding reasonable attorney’s fees and costs resulting from the parent’s failure to comply with these provisions.
So, do not provide this minimum written notice at your peril if you are seeking to move. And don’t just give 60 days notice but give as much notice as is possible. This author believes that if there is the possibility that there will not be an agreement for relocation, given notice to school age children should be given at least six to nine months before the start of the school year.
So what has to be in the written notice?
At a minimum the written notice must set forth:
(1) the intended date of the parent’s relocation;
(2) the address of the parent’s intended new residence, if known; and
(3) the length of time the relocation will last, if the relocation is not for an indefinite or permanent period.
The notice should also provide a place for the signature of the other parent.
What happens if the other parent signs the notice?
Then it is up to the parent seeking relocation to file the signed notice with the court. Illinois relocation law then provides that if this is done, “relocation shall be allowed without any further court action.” But then parenting time may need to be altered and the law provides, “The court shall modify the parenting plan or allocation judgment to accommodate a parent’s relocation as agreed by the parents, as long as the agreed modification is in the child’s best interests.”
So what happens if the other parent objects to the relocation or does not sign the written notice?
If the non-relocating parent objects to the relocation, does not sign the notice described above, or the parents cannot agree on modification of the parenting plan or allocation judgment, the parent seeking relocation must file a petition seeking permission to relocate. If contested, whether relocation is granted is then based on the best interest of the children.
I have “sole custody.” Do I need the father’s permission, or a court order, to move with my child to another state?
The answer is a qualified yes. The exception is the so called 25-mile rule.
If I have joint custody can I block removal of the children from outside these mileage restrictions?
Not on the basis of having “joint custody.” Recall that the term “joint custody” disappeared from Illinois law in 2016. For joint parenting agreements entered before 2016, having “joint custody” does not give one veto power over removal. The issue would still be based on the children’s best interest.
Is a court order always required in order to permanently remove children outside of the boundaries you describe?
Not necessarily. First, sometimes the original marital settlement agreement (incorporated into the divorce judgment) would give a parent permission to move outside of the stated boundaries in the future. In fact, the provisions of the 2016 law regarding what should be in parenting plans provides, “(12) provisions for resolving issues arising from a parent’s future relocation, if applicable.”
Second, the other parent might sign the written notice described above.
What is the basis for the court allowing children to be permanently removed from Illinois?
For the details of Illinois statutory law, see Section 609.2. The law provides ten-plus factors the court applies in determining relocation:
- 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 a parent-child relationship caused by a parent’s relocation; and
- any other relevant factors bearing on the child’s best interests.
What can I do to convince the court there should be a move?
- Often there should be a good economic reason to show that the children’s economic condition will improve by the move.
- You should gather evidence (often available on the Internet) of the quality of education in the community. This factor is stated, as, “the educational opportunities for the child at the existing location and at the proposed new location.”
Also, if the children are involved in extracurricular activities, the type of such activities which will be available to them in the new community.
I remarried and my new husband has a very significant career opportunity which requires we move to another state. Will the court allow me to take the children out of state?
Often – 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 relocation.
On the other hand, under earlier Illinois law, the appellate court had 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.
Will a substantially higher salary for the step-father be considered a benefit to the child?
Yes, but don’t count on it carrying the day. Before the changes to the Illinois statutory scheme in 2016, there had been the well known “indirect benefit” concept. It allowed consideration of what might be called a “trickle down” approach. Yet the changes to the law made in 2016 have been deemed by at least one appellate court opinion to refocus the attention on the child’s best interests and perhaps move away from allowing indirect benefits to be the focus.
If, however, the step-father’s increased income allows the mother not to be employed outside of the home, this remains a plus.
It is better to show benefits for the child, such as better schools, being closer to supportive family members (as when the mother moves back to her community of origin), etc.
Does the child’s preference regarding relocation count?
Yes. Factor 8 considers “the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation.”
For the relocation that involves a significant distance (such as an out of state relocation) to be allowed, will the non-residential parent be given longer blocks of parenting time?
Generally – yes. Factors include “the anticipated impact of the relocation on the child” and “whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs” and “minimization of the impairment to a parent-child relationship caused by a parent’s relocation.”
Often when removal is to distant location, larger blocks of time are ordered rather than frequent exchanges. But the developmental level of the children has an effect. For example, relocation to a distant state may be more difficult with a younger child. The goal should be to give the non-moving parent as close to what he (or she) had before as possible. In cases of relocation to a distant state, this has usually meant that the parent staying in the area should be offered the major part of the summer vacation.
Do these rules regarding relocation of children apply to non-marital children where the other parent has visitation?
How long does it take to get the court’s approval for removal of a child?
Once both parents agree it is only a matter of several days until a court order for relocation 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. Occasionally, the case may take longer.
Is there a place I can read about the Illinois appellate court cases which allowed or disallowed removal?
Yes, from Gitlin on Divorce: A Guide to Illinois Family Law, which is available at most law libraries including at the McHenry County Government Center (Courthouse) law library. The relocation chapter has been extensively reworked in keeping with the current relocation law and including new case including the recent In re Marriage of Fatkin Illinois Supreme Court decision. See the Gitlin Law Firm’s blog regarding this important decision emphasizing the deference that should be given to the trial court’s decision regarding relocation.