Relocation – Moving the Children’s Primary Residence

Illinois law refer to moving more than a certain number of miles or moving out of state as “relocation.”  The law regarding relocation changed dramatically in 2016. Our current law regarding relocation applies to the child’s current primary residence. Illinois relocation law also applies to parents awarded equal parenting time.

How far can the child’s equal or 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.

Illinois law prohibits a move for a parent within the collar counties if that move is more than 25 driving miles. For those outside of these collar counties, Illinois law has a 50-mile rule.  Also, Illinois law prohibits a move from the child’s current primary residence to a location outside of Illinois if the more is more than 25 miles.

How do we measure the number of miles for a 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?

Provide this notice at least 60 days before relocation.  The sooner the better.  Illinois law provides a narrow exception–when the minimum 60-days notice is “impracticable.” But in that event, the law requires you to provide notice 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, if you fail to provide this minimum written notice, you do so at your peril. And don’t just give 60 days notice. Give as much notice as possible. Consider a rule of thumb. If there exists the possibility that there will not be an agreement for relocation, provide notice in cases involving school-age children at least six to nine months before the school year starts.

So what do I need to include 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.

Also provide in the notice a place for the signature of the other parent.

What happens if the other parent signs the notice?

Then the parent seeking relocation must 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 parenting time may need to be altered. So, the relocation law in Illinois also 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 or does not sign the notice described above, then the parent seeking relocation must file a petition. That petition requests the court’s permission to relocate. If contested, the court decides relocation based on the children’s best interest.

I have “sole custody.” Do I need the father’s permission, or a court order, to move with my child to another state?

Yes. The exception is the so called 25-mile rule.

Is a court order always required in order to permanently remove children outside of the boundaries you describe?

Not necessarily.  Consider two exceptions.

First, sometimes the original marital settlement agreement or the allocation judgment gives the primary residential parent permission to move outside of the stated boundaries in the future.  Illinois law provides that the parties within their parenting plan can provide “(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 outside of those boundaries?

For the details of Illinois statutory law, see Section 609.2. The law provides ten-plus factors that the court considers in determining relocation:

1. the circumstances and reasons for the intended relocation;
2. the reasons, if any, why a parent is objecting to the intended relocation;
3. 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;
4. the educational opportunities for the child at the existing location and at the proposed new location;
5. the presence or absence of extended family at the existing location and at the proposed new location;
6. the anticipated impact of the relocation on the child;
7. whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs;
8. the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation;
9. possible arrangements for the exercise of parental responsibilities appropriate to the parents’ resources and circumstances and the developmental level of the child;
10. minimization of the impairment to a parent-child relationship caused by a parent’s relocation; and
11. any other relevant factors bearing on the child’s best interests.

What can I do to convince the court there should be a move?

1. Often there should be a good economic reason to show that the children’s economic condition will improve by the move.
2. 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.”
3. If the children are involved in extracurricular activities, consider the type of such activities available to them in the new community.
4. The impact of extended family in Illinois and the new state often comes into play.
5. The practicality of the parenting time schedule offered is critical.

I remarried. My new husband has a very significant career opportunity that 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 out-of-state 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 new husband’s wages would go down if he did not move out of state. Caselaw often focuses on unique career opportunities. And this just one factor among many.

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, Illinois law had a controversial “indirect benefit” concept. Certain districts in Illinois allows consideration of a “trickle-down” approach. Yet the changes to the law made in 2016 that might be seen as eliminating that concept. Instead, the statute focuses on the best-interest of the children. The court considers the above 10-plus factors.

If, however, the step-father’s increased income allows the mother not to be employed outside of the home, this remains a plus. Yet it is better to show benefits for the child. These might include a significant better school system, being closer to supporting family members in cases where one moves back to their family of origin.

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”

“Whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs”

The “minimization of the impairment to a parent-child relationship caused by a parent’s relocation.”

Often when removal is to distant location, the court orders larger blocks of time. But the developmental level of the children remains critical. 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 as possible to what he (or she) had before. 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?

Generally, yes.

How long does it take to get the court’s approval for removal / relocation 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. Our firm’s book is available at most law libraries including at the McHenry County Government Center (Courthouse) law library. The relocation chapter has been extensively reworked. It includes the the recent In re Marriage of Fatkin Illinois Supreme Court decision.  See the Gitlin Law Firm’s blog regarding this important decision. This case emphasizes the deference that the appellate court has to provide to the trial court’s decision regarding relocation. The Gitlin Law Firm has a comprehensive spreadsheet regarding relocation cases. It examines all of the Illinois removal and relocation cases since the all-important In re Marriage of Eckert decision.