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Limitation of One-Hour Drive on Parenting Time is Reversible Error Without Finding of Serious Endangerment

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Categorized as Child Custody & Visitation, Illinois Family Law

With new changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), comes different ways of applying the law. One of those changes is a parent’s restriction on removing a child for more than 25 miles than their prior location without leave of court. While the restriction used to be based on state lines, it is now based on the number of miles from the child’s prior location.

Another significant change is the allocation of parenting time (formerly called visitation). The new parenting statute is governed by 750 ILCS 5/602.7. Pursuant to section 602.7(b), the court shall not place any restrictions on parenting time as defined in section 600 and 603.10 unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health. Section 600 defines “restriction of parenting time” as “any limitation or condition placed on parenting time, including supervision.”

While in most cases we would consider supervision as a restriction of parenting time, a trial judge was reversed after she limited a parent’s parenting time to an area of not more than one-hour from where the child lives. In In re the Custody of G.L., 2017 IL App (1st) 163171 (May 31, 2017), the mother had relocated the child from the Chicago-land area to southern Illinois without leave of court or the father’s permission. The mother reasoned that she was under the belief that it was ok so long as she didn’t relocate to another state. The trial court found that it was in the best interests of G.L. that he reside primarily with the father in Wilmette and allocated parenting time to the mother.

However, the trial court went further and limited the mother’s parenting time to locations within an hour of the father’s residence unless the visitation was more than 72 hours, and ordered the mother to move back to the Chicago area. The appellate court found that while the trial court did not abuse its discretion in ordering the mother to return with the child and allocating the majority parenting time with the father, the trial court did err in limiting the mother’s parenting time. The court reasoned that such a time limitation fell into the definition of “any limitation or condition” and would require a finding of serious endangerment.

This definition is important to note as often times the courts will place conditions or restrictions that although it may not be supervised visitation, may still require a finding of serious endangerment. As such, an appeal of a court order putting a restriction on your parenting time without such a finding will likely be reversed.

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