Most parents do not think about what would happen if they could not agree on where their child will live. In cases where parents do not live together and do not align when it comes to lifeplanning, one parent may want to relocate with a child while the other parent does not or cannot join in the move. Prior to 2016, Illinois courts used a statute referred to as "the removal statute" – which required a finding that letting the child move would serve the child's best interests – to decide questions raised when a parent wanted to relocate with a child to another state. That statute put the burden on the parent who wanted to make the move to prove the case for best interest.

The statute raised more questions than it provided answers, given that

  • it did not list factors for courts to consider;
  • it did not have any process for required notice;
  • it did not say how court-ordered evaluations should deal with relocation when evaluating which parent would make decisions for a child and how much time each parent would spend with a child; and
  • it did not state how high a legal standard of proof the parent needed to meet.

By way of an example, legal proof standards range from lowest to highest as follows – preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Eventually, a preponderance of the evidence standard was specified when answering these questions in cases decided in the Illinois appellate courts.

Traditional factors in court decisions

Based on case law, the main factors to consider when making the decision in the child's best interest include:

  • whether the proposal will enhance the general quality of life for both the custodial parent and the child;
  • the motives of the custodial parent for seeking the move (ie, determining whether the move is merely a ruse intended to defeat or frustrate visitation);
  • the motives of the non-custodial parent for resisting removal;
  • the visitation rights of the non-custodial parent (including the child's relationship to each parent and other family members); and
  • whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

New relocation statute

In keeping with societal evolution, the Illinois legislature updated the removal statute and redesignated it as a statute on relocation. In broad terms, the new relocation statute contemplates not only relocation outside Illinois but also relocation within Illinois – thereby recognising that a move across a state line to a new home that is an hour away does not disrupt a family as much as a move within the same state, where children could live as much as four or five hours away from a parent.

This new iteration of the statute passed the Illinois legislature in 2016. It added structure to how courts decide the issues and determined an order for making such decisions by:

  • defining a parent's relocation as a substantial change in circumstances – meaning parents no longer have to fight an initial battle to prove that moving entitles them to ask to change parenting schedules, given that they must prove a substantial change in circumstances in order to make changes to their children's schedules;
  • stating that only a parent with the majority of parenting time or 50% of the parenting time can seek relocation – meaning any parent concerned about the possibility of relocation affecting a decision on parenting time may consider first seeking a majority or 50% of parenting time before requesting permission to relocate so as to keep the issues distinct from one another, whereas previously a court faced with making a decision about how to allocate parenting time and a decision on relocation did not have a mandate to make decisions about parenting time first;
  • adding a requirement for a parent to give notice when asking to relocate with a child;
  • stating when a parent asking to relocate must give notice;
  • stating what a parent asking to move must include in the notice;
  • stating that, if a parent does not give the proper notice and just moves the child, the court can take it into account when assessing the good faith of the request and this may impact awards of attorney's fees;
  • stating factors that courts should consider when considering whether a move aligns with a child's best interests; and
  • including a distance requirement where a move will keep the case in Illinois.

Decisions after the change to the statute

Even with all that the updated statute includes, it elected not to incorporate or override the prior appellate court decisions on relocation issues. Those decisions differed from one appellate court district to another, giving rise to the belief that decisions in this area turn exclusively on the facts of each case. Decisions after the change in the statute include the following.

  • In re Marriage of Fatkin – the appellate court overturned a trial court decision to allow relocation where:
    1. the father trying to relocate to live with his parents when his mother had a terminal illness did not give the court enough proof that he could not find employment without moving;
    2. the father did not provide the court with evidence of the quality of schools the children would attend
    3. the mother provided 44% of the childcare; and
    4. the children would have to leave their friend networks.
  • In re Parentage of PD – the appellate court affirmed a decision denying relocation where the mother seeking to relocate to where her husband planned to work:
    1. did not appear to support the father's role as a parent; and
    2. over-stated the case in the evidence she submitted for a number of the factors listed in the statute, including her allegation that her husband would lose his job if he did not relocate.
  • In re Marriage of Kavchak – the appellate court affirmed a decision allowing relocation where the mother had the opportunity to change jobs and where none of the evidence demonstrated the mother having any history of inappropriate conduct with regard to the father's relationship with the child.

These decisions do not necessarily signal a relaxation in the quality of facts that will lead to a successful relocation, although (or regardless of whether) they signal a difference in what prompts a parent to seek relocation. The decisions remain fact-specific – with no one factor having any greater importance than any other factor – and turn largely on having evidence for each factor and an absence of poor attitude on the part of the relocating parent towards the other parent's relationship with the child.

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