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Removal of Children From the State

We are frequently asked whether a custodial parent can move out of state with the minor children over the objection of the non-custodial parent, particularly where the custodial parent is to be remarried or has experienced a change in employment. Such a decision is a difficult one for everyone involved. Not only will the lives of the children be disrupted as they will be required to move away from friends and attend new schools, but the non-custodial parent's visitation rights will also be affected. The non-custodial parent will often suffer reduced parenting time and contact with the children, an especially traumatic situation if that parent has been actively involved in the lives of the children.

In Illinois, as in other states, this situation is governed by statute. The custodial parent is required to file a petition with the court requesting permission to remove the children from the state. This should be done well in advance of the proposed move, because psychological examinations of the parties and the children (and possibly others) may be required by the court, and it is difficult to obtain a prompt hearing.

Removal will only be approved if it is in the best interest of the children. The Court will consider various factors, including (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move; (3) the motives of the non-custodial parent in resisting the removal; (4) the effect on the non-custodial parent's visitation rights; and (5) whether a realistic and reasonable visitation schedule can be reached if removal is permitted. No one of the factors is controlling and the weight to be given each factor will vary depending on the case.

Facts supporting removal may include the enhancement of quality of life and increased standard of living of the custodial parent and the children; attendance at better schools; genuine and sincere reasons for the move, such as a remarriage, or change in employment; moving closer to supportive, extended family; a close relationship between the children and the new spouse and the new spouse's family; and any other facts suggesting that the move will be in the best interest of the children.

Facts that may weigh against removal could involve the custodial parent's prior conduct in frustrating the visitation of the non-custodial parent; the non-custodial parent's close relationship with the children; diminution of parenting time and regular contact with the children; the non-custodial parent's regular exercise of visitation rights and active involvement in the lives and activities of the children; or whether a reasonable visitation schedule is impractical due to costs of transportation or other reasons.

Given the realities of life today, courts often will approve removal when it is in the best interest of the children, even if the non-custodial parent is disadvantaged by the move. However, courts will often require the custodial parent to make reasonable accommodations for visitation, taking advantage of holiday or semester breaks during the school year and summer vacation periods, and may require the custodial parent to pay for part or all of the transportation of the children for visitation.

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