Judge Bars Mother From Moving Three Hours Away Even Though It Was In-State

It is clear in the law that if a residential parent wishes to relocate to another state, they will need to either get written permission from the other parent or request leave of court before permanently removing the child.  It is not so clear, however, when the relocation is within state lines, yet far enough to have the same negative effects as an out-of-state relocation, such as the disruption on the non-custodial parent’s visitation time.

Such was the case in a recent cook county case where the Judge barred the mother from removing the child to Nixon, Illinois, which is about a two-and-a-half to three-hour drive.  The father filed an Emergency Petition for Temporary Restraining Order.  The Judge initially found that there is a presumption in Illinois caselaw favoring or allowing removal within the entire state, no matter the size of the state.  That presumption can be overcome, however.

The Judge went through the four prongs of a temporary restraining order: 1) is there an adequate remedy at law?; 2) does the Petitioner have a clear and ascertainable right in need of protection?; 3) would there be irreparable harm but for the issuance of the temporary restraining order?; and 4) the likelihood of success on the merits at this time.

In this case, the father had an adequate remedy at law in that he had a Petition for Change of Custody on file.  Secondly, the father had a clear and ascertainable right to do what was in the best interests of the child, which needed to be protected.  The Judge found that the father demonstrated a continued and regular pattern of involvement in all of the activities relating to the child and put the child’s best interest first.  The mother, on the other hand, had put her own best interests in moving before the best interests of the child.

Finally, the Judge found that irreparable harm might occur but for the issuance of the temporary restraining order.  That harm would be the long distance the move would bring and thus impinge on the father’s rights to visitation and ongoing involvement in the child’s academic, social and community life.  The mother’s decision to move was also not driven by greater financial opportunities or the chance to live closer to family members.

The Judge ultimately granted the Temporary Restraining Order and gave the mother the choice to return to cook county and remain the residential parent, or move to Moline and turn over possession of the minor child to the father.

This case brings light to the geographical issues that moving brings.  It is often ironic that a move to Indiana that is only an hour away requires written permission or leave of Court, but a move to the southern tip of Illinois that is five hours away is presumptively allowed unless the non-custodial parent files a motion similar to the one in this case.  It makes more sense to set geographical limitations in terms of miles from the location the child lives than to set state-boundaries, especially when states are either too big, such as California or Texas, or too small, such as Rhode Island.

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