A common question we hear is whether or not a parent can relocate with children after a divorce. In a post-COVID world, working from home has many parents choosing to relocate to be closer to family or in a more convenient neighborhood. While this may work when things are going well in a marriage, it can make the divorce process extra difficult, especially with children. Many times, when a couple dissolves their marriage, one of the spouses will desire extra help and may look to relocate to be closer to family and a support system. Other times, relocating to advance their career is important especially when parents are no longer together. In either scenario, this creates a delicate situation.
Table of Contents
Starting the Process to Relocate With Children Post-Divorce
First, it’s important to consider the distance you are seeking to move. If you just want to move down the street, it’s unlikely you’ll have a big legal hurdle to overcome. However, Illinois has different laws for parents depending on how far they are planning to move with their children. Pursuant to 750 ILCS 5/600(g), Illinois defines a move as a “Relocation” in 3 different ways.
- When a parent wants to move with the child from Cook County, DuPage, Kane, Lake McHenry, or Will County to a new residence within Illinois that is more than 25 miles from the child’s current residence;
- When a parent wants to move with the child from a county not listed in #1 to a new residence within Illinois that is more than 50 miles from the child’s current residence; or
- When a parent wants to move with the child outside of the borders of Illinois to a state that is more than 25 miles from the child’s current residence. If none of these three situations apply to you, then it is likely you can move with your child without legal trouble.
To begin the relocation process, as the parent wishing to relocate, you must send written notice to the other parent. A notice should include the intended date of the relocation, the address of your new residence, (if known), and the length of time the relocation will last if it is not for an indefinite or permanent period. 750 ILCS 5/609.2.
A copy of the notice must be filed with the Court. In most cases, this notice must be filed at least 60 days prior to the intended relocation. If the other parent consents, they need to sign the notice and the relocating parent must file the signed notice with the Court. Once this occurs, you may relocate without any further Court action. However, if the non-relocating parent does not consent, the Court will need to make a determination about the children’s residence prior to the relocation. The Court may hold a hearing where a Judge can make the determination based on Illinois relocation laws.
Relocation Based on Child’s Best Interests
The current Illinois relocation statute became effective on January 1, 2016. A court’s determination of relocation of a child is based on the child’s best interests. In determining the best interests of the child, the trial court considers the following relevant factors:
- the circumstances and reasons for the intended relocation;
- the reasons, if any, why a parent is objecting to the intended relocation;
- 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;
- the educational opportunities for the child at the existing location and at the proposed new location;
- the presence or absence of extended family at the existing location and at the proposed new location (the child’s ties to the current and proposed community and to extended family members);
- the anticipated impact of the relocation on the child;
- whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs;
- the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to relocation;
- possible arrangements for the exercise of parental responsibilities appropriate to the parents’ resources and circumstances and the developmental level of the child;
- minimization of the impairment to a parent-child relationship caused by a parent’s relocation; and
- any other relevant factors bearing on the child’s best interests.” [750 ILCS 5/609.2(g)(1) to (11)]
These factors in the law are not seen as a definitive checklist which are all required to either grant or deny a child’s relocation. Rather, they are like ingredients of a meal – the more you have in your favor, the more likely your Relocation is going to succeed deliciously.
What Kind of Evidence Do I Need for my Relocation Case?
Certain types of evidence and documents would be helpful evidence for a successful relocation case. An important factor that the Court will consider is comparing the education opportunities in each debated location. Showing that your children will be attending a good school with activities and sports they enjoy can play in your favor. If you are relocating because of a better job opportunity, showing the job offer letter with a higher salary and better benefits would also be helpful. Having extended family nearby at the new location can also be helpful. This can be presented by showing that you are moving near the child’s grandparents or cousins, for example. Alternatively, showing that you are moving to a tight-knit and established community, like moving back to an old neighborhood of yours.
Another factor the court would view in your favor is if the other parent’s time with the children would be minimally impacted. Being able to show that you and the other parent have good communication and you are willing to come up with a reasonable schedule for the children to see their other parent will help a judge see that the relocation would go over smoothly.
What are the Consequences of Moving Without the Court’s Approval?
If you move or “relocate” within the definition of Illinois law without informing the Court and the children’s other parent, there could be serious consequences if the other parent does not consent. The Court has the power to order that your children be brought back to their “home state.” Generally, a child’s home state is the state in which a child has lived with a parent for six consecutive months (or since birth if the child is younger than six months).
Relocation When Other Parent Fails to Exercise Parenting Time
Based on Illinois case law, Courts tend to grant relocation in cases where the other parent fails to exercise their parenting time. If the other parent regularly participates in parenting time, the Court will be reluctant to allow relocation. Especially if the child has family in Illinois. Although under the statute, the notice does not need to be provided more than sixty (60) days, you should give the notice as soon as possible. It is important to discuss a potential move with the other parent. It is also a good idea to go through the statute and think about the factors and the pluses and minuses in your favor.
The best-case scenario when a divorced parent wants to relocate with children is to talk to the other parent and try to reach an agreement. If the other parent will not agree, it is important to seek legal guidance from an experienced relocation attorney.