How child custody can affect out-of-state job transfers or relocating to find employment

How child custody can affect out-of-state job transfers or relocating to find employment

It is not uncommon for one's job to dictate the place in which a person calls "home". Whether you are required to relocate out-of-state because of an internal job transfer or forced to move to community with higher potential job prospects (especially in today's economic climate), a custodial parent may have little choice as to where they live.

Unfortunately, if these moves involve child custody affairs, the matter will likely require more than just a U-haul truck and GPS devise. The Illinois Marriage and Dissolution of Marriage Act ("IMDMA") provides:

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. 750 ILCS 5/609(a).

What this means for custodial parents is that in most cases he/she must first seek court approval prior to leaving the state of Illinois. In order to do so, the parent must file a petition with the court asking permission to leave the state of Illinois with the child/children and subsequently set a court date in which evidence will be presented to the judge showing why it would be in the best interest of the child/children to move.

Generally speaking, the Illinois Supreme Court established 5 distinct factors in determining whether or not the move is in the child/children's best interest(s). The five factors are: (a) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (b) motives of the custodial parent in seeking removal; (c) motives of the non custodial parent in resisting the move; (d) existing visitation schedule; and (e) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. In re Marriage of Eckert, 119 Ill.2d 316, 326-327, 116 Ill.Dec. 220, 518 N.E.2d 1041 (Il. 1988).

These factors have been subject to many thorough and sometimes inconsistent interpretations. For example, see In re Marriage of Collingbourne, 204 Ill.2d 498, 523, 274 Ill.Dec. 440, 791 N.E.2d 532, 546 (2003); In re Marriage of Eaton, 269 Ill.App.3d 507, 516, 207 Ill.Dec. 69, 646 N.E.2d 635, 643 (1995). In subsequent decisions, the Illinois Supreme Court has noted that the Eckert factors are not exclusive and are only factors to be considered and balanced in determining whether removal is in the children's best interests. No individual factor is controlling, and the weight accorded each factor will depend on the case's facts. Collingbourne, 204 Ill.2d at 523, 274 Ill.Dec. 440, 791 N.E.2d at 546; see also In re Marriage of Smith, 172 Ill.2d 312, 321, 216 Ill.Dec. 652, 665 N.E.2d 1209, 1213 (1996)."

In In re Marriage of Parr, 345 Ill.App.3d 371, 377 (4 th Dist. 2003), the trial judge concluded that both parents have a right to share in the children's lives, the children have a right to have their parents involved in their activities, and thus a reasonable alternative visitation could not be arranged. That finding essentially gave a non-custodial parent, who has a good relationship with his or her children, the right to veto the custodial parent's desire to move out of Illinois no matter how legitimate and well-founded that desire is. The Eckert decision and the Act do not provide such a veto power to the non-custodial parent. See Eaton, 269 Ill.App.3d at 514, 207 Ill.Dec. 69, 646 N.E.2d at 641. The Supreme Court agreed that the custodial parent's interests should not be automatically subordinated to those of the non-custodial parent in a removal issue. Collingbourne, 204 Ill.2d at 528, 274 Ill.Dec. 440, 791 N.E.2d at 548; Ludwinski, 312 Ill.App.3d at 503, 245 Ill.Dec. 166, 727 N.E.2d at 425. "Indeed, 'our society is a mobile one', Eckert, 119 Ill.2d at 330, 116 Ill.Dec. 220, 518 N.E.2d at 1047, and 'since a court has no power to require the non-custodial parent to remain in Illinois, or to require members of the extended family to remain in Illinois, some deference is due to the custodial parent who has already determined that the best interests of her child and herself are served by remarriage and removal. The best interests of children cannot be fully understood without also considering the best interests of the custodial parent.' Collingbourne, 204 Ill.2d at 528, 274 Ill.Dec. 440, 791 N.E.2d at 548, quoting Eaton, 269 Ill.App.3d at 515-16, 207 Ill.Dec. 69, 646 N.E.2d at 642.

Additionally, any removal will have some effect on visitation, but the real question is whether a visitation schedule that is both reasonable and realistic can be created. It need not be perfect." Eaton, 269 Ill.App.3d at 515, 207 Ill.Dec. 69, 646 N.E.2d at 642.

"The quality of a relationship need not be adversely affected just because that relationship becomes a long distance one." Ludwinski, 312 Ill.App.3d at 504, 245 Ill.Dec. 166, 727 N.E.2d at 427. When effort is expended to establish a reasonable visitation schedule, close relationships can continue and even be enhanced. Collingbourne, 204 Ill.2d at 533, 274 Ill.Dec. 440, 791 N.E.2d at 551, quoting Ludwinski, 312 Ill.App.3d at 504-05, 245 Ill.Dec. 166, 727 N.E.2d at 427; see also Eaton, 269 Ill.App.3d at 515, 207 Ill.Dec. 69, 646 N.E.2d at 642."

Although Illinois courts have varied in their interpretations of the importance and impact of the various factors mentioned above, the law is clear that permission for removal of children must be granted by the court prior to an out-of-state job relocation.

For assistance with these custody and other post marriage dissolution matters, contact the attorneys at BENCKENDORF & BENCKENDORF, P.C.