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Divorce Law and Custody -- Don't Remove a Child from Illinois Without a Court Order (Part 1)

In Illinois it is established law that a child who is the subject of a custody court order cannot be taken outside of Illinois without Court permission (assuming the custody order does not allow the custodial or "residential" parent to take the child of state). Such an order may be modified after hearing in the event that the parent seeking removal can show that the removal is in the best interest of the child.

Please note this really does not apply to vacation travel in the typical divorce, where the decree almost always allows vacation travel out of state (check your decree first to be sure).

For real removal of children out of state, the statute governing this is:

(750 ILCS 5/609)
Sec. 609. Leave to Remove Children.

(a) The court may grant leave, BEFORE OR AFTER JUDGMENT, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.

The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.

The major case law can be summarized in In Re Marriage of Eckert. In that case, the Illinois Supreme Court set out five factors regarding removal determinations:

1. whether the move enhances the general quality of life for the custodial parent and the children;

2. the motives of the custodial parent in seeking removal, such as whether removal is simply an attempt to prevent visitation;

3. motives of the noncustodial parent against removal;

4. that it is in the best interest of the child to have a healthy and close relationship with both parents as well as other family members; and

5. whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

In the First District (Chicago and Cook County) the trial courts take an approach that acknowledges economic necessity as a valid reason for removal. If the removing parent can show the court that there is an economic need or benefit with a move, removal would be allowed. These benefits can indirectly benefit the child. Examples would be a new spouse, substantially better job, moving to be near the parent's family and support structure, et cetera.

The Second District (DuPage, Kane, Lake, McHenry, Kendall, and others) takes a more strict view. That is, courts in the Second District demand evidence of the direct benefit to the children to allow removal.

The Third District (Will County and others) takes a more liberal approach, permitting removal in situations where an indirect benefit to children was shown.

If you have a question about removal, or any other family law issue, please call attorney Raiford Palmer at 630.434.0400 Ext. 165.

posted by Raiford Palmer at 10:25 AM

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