In Illinois, removal is when one parent is seeking to permanently relocate with the minor child either a significant distance within the State or to another State altogether. In Illinois, removal is governed by 750 ILCS 5/600 (g) and 750 ILCS 5/609.2.
If you are looking to move with your child from your current home, the first question you may be asking yourself is, does this constitute removal?
Pursuant to 750 ILCS 5/600(g) the issue of removal arises when one parent is seeking to do one of three things:
1. Move with the child from the county of “Cook, DuPage, Kane, Lake, McHenry or Will to a new residence within the State that is more than 25 miles from the child’s current residence”;
2. Move with the child from a county not listed above to a new residence within the State that is more than 50 miles from the child’s current residence;
3. Move with the child outside the borders of Illinois to a State that is more than 25 miles from the child’s current residence.
If none of these three scenarios applies, you are likely free to move with your child without having to petition the Court. However, you should always consult the parameters of your parenting plan for any specific language in this regard.
If one of the three above scenarios applies to your intended relocation, then you are seeking to remove the child. If your child’s other parent is not in agreement with the removal, then you will need to file the appropriate pleading with the court asking for permission to remove the child.
The first step you must take, in a removal case is to file the appropriate Notice of Intent to Relocate giving the other parent the requisite notice that you not only intend to relocate but that you are seeking to take this matter before the Court. Pursuant to 750 ILCS 5/609.2, a Notice of Intent to Relocate must provide the other parent, and the Court, with the following information:
1. The intended date of the 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 period.
Once you have properly filed and served this Notice, it is the burden of the other parent to file the appropriate objection in order to stop the relocation. Once the other parent has done so thereby putting both you and the Court on notice of their intent to fight the relocation, an automatic temporary restraining order is placed prohibiting either parent from taking the child outside of Illinois. This is a safety precaution to prevent either parent from attempting to abduct the child from Illinois as a result of fear of either not being allowed to relocate or “losing” their child as a result of relocation.
Once the appropriate notices and objections have been filed, the burden shifts back to the parent seeking to relocate. Specifically, in removal cases, the burden of proof is on the parent seeking to relocate with the minor child. Meaning, the parent seeking to relocate must show to a Court that the relocation is in the child’s best interest and will not otherwise impair the relationship between the child and the other parent. In order to be allowed to relocate with the child, the Court will consider the following factors:
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 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 independent preferences as to relocation;
9. Possible arrangements for the exercise of parental responsibilities;
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 interest.
As you can see, there is no definitive test for a Court to consider in determining whether a parent should be allowed to relocate. When hearing a removal case, the court will have to consider each matter on a case-by-case basis in determining what is in the child’s best interest. However, the Court will often give deference to the child’s current and historical relationship with the non-relocating parent. For example, if the other parent exercises a considerable amount of parenting time and is actively involved in the child’s life, removal will be much harder to achieve as the Court will give substantial weight to the impact the relocation will have on this relationship. With that said, if the other parent has failed to exercise regular parenting time and is not actively involved, your chances of being granted removal are higher. Another factor that the Court will give substantial weight to is the wishes of the child. If you are seeking to relocate with a teenager, the Court (with the use of a Guardian Ad Litem/Child Representative) will heavily consider the preferences of the child taking into account their ties to their current life. If you are dealing with a younger child, who can be more easily incentivized, a court will rely less on the wishes of the child. A court can also look at the benefits to the relocating parent and use those benefits to show a direct benefit to the minor child. For example, if you are seeking to relocate for a job opportunity and you are otherwise unemployed or underemployed in Illinois, a Court may consider the job opportunity as a factor as this would allow for you to be able to provide a better life for your child.
Whether you are seeking to relocate, or you have been alerted to the possible removal of your child, removal cases are often extremely contentious and can result in very long and costly litigation. It is important in any removal case that you have the assistance of legal counsel to help you navigate this very stressful process. The attorneys at Ward Family Law, LLC have extensive litigation and trial experience in dealing with removal matters and would love to speak with you. Please contact Jennifer R. Ward, Founder, to set up your initial consultation at firstname.lastname@example.org today.
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