Removal refers to the situation when the custodial parent wants to change the children’s residence to another state. Under the Illinois Marriage and Dissolution of Marriage Act (the “Illinois Divorce Act”), Custodial parents, even those having sole custody, do not have the unfettered right to move their children out of the State of Illinois without permission of the court.
As a Rockford family law attorney, I and this firm will zealously represent both parents seeking removal in order to relocate to another state, and parents seeking to oppose removal.
In Illinois, the custodial parent may seek leave of the court to remove the children’s residence from Illinois. Section §609(a) of the Illinois Divorce Act states,
“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.”
This section does not apply to intrastate relocations of minor children by custodial parents. As a result, the custodial parents generally do not have to seek court permission to relocate their children’s residence within the State of Illinois.
The burden of proof is on the custodial parent seeking to relocate the children’s residence out of the State of Illinois, to prove such removal is in the “Best Interest of the Children.” If the parents don’t agree the removal process can be a lengthy one very similar to originally establishing custody, with the Court having the ability to order the parents to attend Mediation, to appoint a Child Attorney, and to order a Custody Evaluation all prior to the Removal hearing.
Removal decisions are fact specific, with the Court’s determination seldom certain. In 1988, the Illinois Supreme Court established the following criteria to determine if a removal meets the best interest test: (i) whether the proposed removal is likely to enhance the lives of the custodial parent and children, (ii) whether the motives of the custodial parent seeking removal are good, (iii) for what reasons the non-custodial parent is resisting removal, (iv) the impact of the removal on the existing visitation schedule, and (v) whether a reasonable visitation schedule can be maintained if the removal is approved.
Winning or losing a removal petition can be life altering, not only for the custodial parent and children, but also for the non-custodial parent. Job promotions, re-marrying and the whole visitation arrangement can be at stake. Whichever side of the removal issue you find yourself on, we understand the law, and know how to best present your case to the court. We will fight aggressively for or against the removal petition and to maintain your custody rights.
We represent clients in a wide variety of child custody matters, so please call us if you have need for a Rockford child custody lawyer. In the interim, please check out these pages on our website for more information on child custody in Illinois: