Illinois Divorce and Family Law Weblog

Helping You and Your Family get through DivorceSM.
Weblog of DuPage County Attorney Raiford D. Palmer, focusing on divorce and family law.
(Copyright© 2005-2008 by Raiford D. Palmer. All rights reserved.) This blog is for advertising only and the contents are not legal advice.

Wednesday, June 28, 2006

Parentage and Child Support -- Don't Remove a Child from Illinois Without A Court Order (Unmarried Parents)!

If you are an unmarried parent considering taking your child out of Illinois--stop! You need a court order first. Even if there is no existing parentage order or custody order in place, you need permission from the court to take a child out of state. (Note that if the other parent OKs the travel out of state, and it is a vacation for example, an order is probably not needed).

That is the recent decision by the Illinois Supreme Court in Fisher v. Waldrop, 2006 WL 1029682 (Ill. 2006). The Court decided in that case that even in a case involving unmarried parents, the parent seeking to remove the child must request permission from the court and must prove that the move will benefit the child (see my other post below for more on removal).

So do not assume that you can take your child out of state in any case -- get an order first. Removal of a child from the state without an order may be a crime and incur civil penalties as well. Even if the other parent does not care what happens, get an order. You don't want to regret it later.

If you are trying to prevent removal of your child from Illinois, or you wish to move out of Illinois with your child, please call attorney Raiford Palmer at 630.434.0400 Ext. 165.

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.

Thursday, June 01, 2006

Child Support Arrearages -- Unpaid Child Support Will Not Go Away!

In a recent decision by the Illinois Appellate Court, known as In Re Saputo, the Court held that there is no statute of limitations for unpaid child support claims. In that case, the wife/mother sought $375,530 based on a support obligation that began in 1966 at $30 a week! The Court held that no state of limitations prevented the claim.

Bottom line: pay your support on time. Every missed or short payment is a separate judgment against the support payor and piles up interest at 9% per year! If you lost your job or make less money than when support was determined, you must still pay the old support amount until YOU go to court and get a reduction or abatement. That interest is what made the $30/week turn into almost $400,000 in the Saputo case. For people entitled to support - don't think that you can't pursue child support if a long time has passed. Your claim is still valid. More importantly, lawyers can take these cases on contingency fees - meaning you pay nothing to the lawyer if no money is collected.

Please call 630.434.0400 Ext. 165 to speak to attorney Raiford Palmer.