A parent with custodial rights may want to relocate with the children after divorce. For instance, some parents move to pursue employment opportunities or to be closer to family members. State law uses the term "removal" to describe a temporary or permanent move with a child. Before the relocation, the custodial parent must follow the requirements established by the state's custody and removal laws.
Custodial Parent's Rights
Divorced parents generally receive a custody plan as part of their divorce. Each parent should generally know if he or she is the custodial parent with physical custody or noncustodial parent with visitation rights, even if the parents share the right to make parenting decisions through joint legal custody. Illinois custody laws specifically allow a custodial parent to remove children from the state for a temporary or permanent relocation. However, each parent should review the terms of the divorce to confirm each party's custodial rights or to look for any restrictions on interstate travel and removal.
Noncustodial Parent's Rights
Although a custodial parent has a right to remove a child from Illinois, the custodial parent must still provide the other parent with advance notice and details regarding any travel or relocation plans. If the noncustodial parent agrees to the removal, the parents can likely avoid a legal action in state court to litigate the issue. However, if the noncustodial parent does not agree to the removal after receiving notice of the custodial parent's plans, the custodial parent must get an "Order of Removal" issued by the court. Illinois custody laws seek to protect a noncustodial parent's right to regular visitation with the children. For example, state law specifically prohibits the consideration of electronic communication, which may include email or webcam technology, as a reason for the court to approve an out-of-state relocation; the law recognizes that noncustodial parents may prefer in-person visitation to electronic communication.
Legal Standard for Child Removal
If parents cannot agree regarding whether a custodial parent may relocate with the children after divorce, Illinois state laws set a legal standard which the custodial parent must meet before receiving the court order for removal. The custodial parent must show the court that removal is in the children's best interests. The court must consider the child's needs and impact of relocation to another state on the child's life. In addition, the parent seeking to move must provide an important reason for the move. Important reasons may include a new job outside of Illinois or a need to access medical treatments only available in another state. If the court does not believe the parent has an important reason for the relocation, or if the court believes the move would harm the child's best interests, the court may decline to grant an Order for Removal.
Relocation Within Illinois
Although a custodial parent generally needs a court order for relocation outside of Illinois, state law does not impose the same requirement for relocation to another part of Illinois. However, parents should still review the custody terms from their divorce and determine whether a relocation would affect the noncustodial parent's visitation rights. A noncustodial parent who is unhappy about a potential relocation may need to return to court and request a change in the existing custody terms.
References & Resources
- Illinois General Assembly: (750 ILCS 5/) Illinois Marriage and Dissolution of Marriage Act
- Illinois Legal Aid: Legally Taking a Child Out of Illinois
- American Academy of Matrimonial Lawyers: Illinois - Child Custody Issues
- Illinois State Bar Association: Child Custody, Visitation and Child Support in Illinois
- Illinois Legal Aid: Changing Child Custody When Parents Do Not Agree
- American Bar Association: Divorce Litigation: Relocation of the Custodial Parent: A State-by-State Survey
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