Life goes on after divorce. Children get older and their needs and schedules change, parents’ new relationships bring new priorities and the introduction of a new adult into the children’s lives, and some parents are promoted and take on new responsibilities and time commitments at work while others lose their position and are unexpectedly out of a job. Oftentimes, regardless of how extensive and thorough the parenting plan or allocation judgment entered in the parents’ Chicago divorce, circumstances arise after divorce that were simply not contemplated, leaving divorced parents to wonder how the law will view their new circumstances and what the consequences will be.
One such circumstance that often affects Chicago co-parents after divorce is when one parent subsequently wishes to move. New job opportunities can often draw parents to new areas, tighter budgets following divorce often require relocating to new, less costly areas, and now-single parents handling major child-related responsibilities often wish to move closer to out-of-town family for additional help and resources.
As a divorced parent in Chicago, you may wonder whether this kind of move is possible after your divorce. Here’s what you need to know:
Who needs the court’s permission to move after divorce?
The Illinois Marriage and Dissolution of Marriage Act (IMDMA) governs who needs to obtain the court’s approval to move after divorce – a process known as “relocation” under the IMDMA. A Chicago co-parent who has been allocated a majority of parenting time or either parent who has been allocated equal parenting time may seek to relocate with a child. This means that if you are a co-parent who has been allocated less than 50% of the available time with the children, you do not need to seek the court’s permission to move.
What move necessitates the court’s permission after divorce?
If you are a co-parent who has equal or the majority of parenting time and you are considering a move after your Chicago divorce, the next step is to determine whether your move is sufficiently far from your current residence such that you must request the court’s permission.
The IMDMA focuses on the mileage between a parent’s established home and proposed home, depending upon the county in which the parent’s established home is located. For parents living in Cook, DuPage, Kane, Lake, McHenry, or Will Counties, any move more than 25 miles requires court approval. For a divorced parent in any other county in Illinois, a move of more than 50 miles necessitates the court’s permission. And any co-parent desiring to move over 25 miles away into a different state, regardless of the parent’s original county, must seek the court’s approval.
Timing of the request
The IMDMA also governs when a co-parent may seek to move after divorce. While this may seem like an arbitrary consideration, it is important to recognize the legal significance of this request in the context of a divorce.
Because of the potential impact the move will have on parenting time, schedules, transportation, the children’s schooling, etc., such a move is necessarily a modification of the parenting plan or allocation judgment entered during or at the time of divorce. Once a parenting plan or allocation judgment is entered by the court, a modification cannot be requested until at least two years later. The law does provide an exception for this ban on modification in the extreme circumstance that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development. In an effort to inject consistency and stability into children’s lives following the tumult of divorce, courts are very reluctant to allow modification within the two years immediately following the divorce and the legislature has therefore established this very difficult hurdle for an early modification.
Once two years have passed since entry of the parenting plan or allocation judgment, a parent can seek a modification in order to allow him or her to move pursuant to the provisions of the IMDMA. In this case, a modification requires that the court find that a substantial change in circumstances has occurred in the circumstance of the child or of either parent prompting the parent’s request to move, and that as a result, a modification of the parenting plan or allocation judgment allowing the move is necessary to serve the child’s best interests.
Procedure for relocation after divorce
There is also a specific procedure that must be followed by a parent seeking relocation after divorce pursuant to the IMDMA. Importantly, this procedure provides for the possibility of an agreement in advance of the relocation, with guidance for filing a petition seeking relocation when agreement is not possible, and also includes required timelines in an attempt to streamline the process and prevent one parent being blindsided by a proposed move.
A Chicago co-parent who would like to relocate must provide written notice of relocation to the other parent at least 60 days in advance of the relocation, or at the earliest date practicable. The notice must include the intended date of relocation, the parent’s new address, and the length of relocation if temporary. The notice must also be filed with the clerk of the circuit court.
If the non-relocating parent agrees to the relocation, he or she can sign the notice, which can again be filed with the clerk of the circuit court, and relocation will be permitted by the court. If the non-relocating parent does agree, the parent seeking relocation must file a petition with the court.
What standard must be met?
Should the determination of whether a Chicago co-parent is allowed to relocate after divorce ultimately be left up to the judge, he or she will consider whether or not to approve the relocation and modify the parenting plan or allocation by considering the child’s best interest. After the Illinois Supreme Court provided various factors to consider over time in its rulings in relocation cases like In re Marriage of Eckert and subsequently, In re Marriage of Collingbourne and In re Marriage of Smith, the Illinois legislature eventually codified eleven specific factors in 2016 to guide the court’s analysis:
(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.
It is imperative to keep in mind that this is most certainly an “overall, totality of the circumstances” kind of analysis. Every case is different, every factor weighs differently from case to case, and no one factor is determinative.
Evaluate your position
In conclusion, if you are a Chicago co-parent who is considering making a move after divorce, be sure to speak with your Chicago divorce lawyer to determine whether the court’s permission will be required, whether you are legitimately able to seek a modification of your current parenting plan or allocation judgment given the timing of your request, and whether the factors on the whole weigh in your favor to seek relocation should your ex-spouse not agree to your move after divorce. Contact the top Chicago divorce lawyers at Ward Family Law, LLC to evaluate your case further at wardfamilylawchicago.com.