Illinois Lawyer Referrals and Legal Guidance
Criteria for Awarding Custody in Illinois
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Court permission is usually required, and almost always recommended, when a parent wants to remove a child from Illinois. This is true even if the parent has sole custody. The first step is to file a petition for removal. This is not the same as a modification of custody – it is a separate request.
As a general rule, a petition for removal is filed in the state where the child lives, not the state to which the parent hopes to move. However, there are specific rules for determining which state’s courts have the authority to make a custody decision. For example, a state has jurisdiction if the child has lived in that state for six months prior to the filing of the petition, or if the child has significant connections to the state. And a judge has the power to make a different decision if it is in the best interest of the child. In other words, if you have a Chicago parent that moves to California one day, the other parent who objected to the move should file a Cook County custody action right away to prevent the California courts from being able to make a decision on this matter.
If both parents agree to the move, a judge usually will issue a removal order right away. If both parents do not agree, it could take up to a year, or more, to get a decision. This is because each parent is allowed time to make their case and the judge will want to look closely at each side including the plan of the parent that wants to move.
Permission to remove a child from the state is granted on a case-by-case basis. The judge will foremost consider the best interests of the child. Specifically, the judge will look at whether the move enhances the quality of life of the custodial parent and the child, whether the move is merely an excuse to prevent visitation, why the noncustodial parent opposes the move, how a move will affect visitation, and whether a reasonable visitation plan is possible.
The judge will also want to see that a good plan is in place. In other words, you can’t just move to Arizona because you are sick of Chicago winters. But if you can show where you will live, where you will work, where your child will go to school, the support system near where you will be living and how the other parent’s interests will be accommodated you have a chance at getting the judge to see your side of things.
If a divorce or custody case is pending, the rules generally are the same. When a parent files for divorce, the court issues an order preventing either parent from taking a child out of the state without permission.
When the parents of a child are not married, the father generally cannot prevent the mother from moving with the child unless he has established paternity. However, the father could obtain a paternity order after the mother and child move, and the mother may have to return to the state so that a judge can hear the case. If you are a father in Illinois whose child may be taken to another state you need to establish paternity through the courts ASAP.
The rules of removal generally do not apply when a parent wants to take a child out of state temporarily. When the removal is temporary, such as a vacation, the parent is required to notify the other parent or their attorney of the removal, giving an address and phone number where the child can be reached and the date when the child will be returned. The rules of removal apply only when moving out of state, not when a parent moves a child to another area within the same state. However, by agreement of both parents, a marital settlement agreement may state otherwise.
If you have any questions about removing a child from the state of Illinois or would like our help please contact us.