Securing court approval to move out of the state with a child against the wishes of the other parent has become more difficult under Illinois’ 2016 child relocation law and recent court interpretations of that law.
Since the Illinois Supreme Court’s 1988 decision in In re Marriage of Eckert, Illinois courts have considered multiple factors in determining whether an out-of-state relocation is in the best interest of a child. These factors include whether the move enhances the general quality of life of both the custodial parent and child. In the Supreme Court’s 2003 decision in In re Marriage of Collingbourne, the court ruled that the custodial parent doesn’t have to show that the child will reap direct benefits from the move. Improvements to the custodial parent’s life, such as remarriage to an economically secure partner, would generate “indirect” benefits that flow to the child.
The 2016 law, however, excludes consideration of how a move would benefit the custodial parent, putting into doubt whether courts will continue to analyze benefits to parents and indirect benefits to children in future removal cases.
In In re Parentage of P.D., a 2017 case that was decided using the 2016 law, the mother was prevented from moving to New Jersey, 20 miles outside of New York City, where her husband was employed. She, too, worked with a New York-based company and could have transferred jobs. The Appellate Court of the Second District affirmed the lower court’s decision, noting that the court rightly failed to consider how the move would enhance the mother’s life. The court noted that the state legislature knew that courts had been weighing improvements in the custodial parent’s life in removal cases, and it chose to leave that factor out of the statute, which delineates 11 factors courts should consider.
In a 2018 case, In re Marriage of Fatkin, the Appellate Court of the Third District reversed a decision allowing a father to relocate his two children to live with his parents in Virginia Beach. The father and mother shared custody, but the children’s primary physical placement was with the father. While the father argued that the move would improve the children’s standard of living, the court found that the father was voluntarily underemployed in Illinois. Experts say the case illustrates the difficulty of securing a favorable relocation order when the parties have joint custody.
The Illinois Supreme Court has accepted Fatkin for review, and it will likely have to decide if the moving parent’s quality of life should continue to be a factor courts weigh, despite the 2016 law leaving that element off. That’s because another Second District ruling seems to conflict with the panel’s decision in In re Parentage of P.D. In re Marriage of Kavchak, a 2018 case, the Appellate Court approved the removal request of a mother who was moving to North Carolina to work on her Ph.D., send the child to private school and have her mother help provide child care. The court rejected the father’s claim that the court should not consider, per the holding in P.D., how the move would benefit the mother. It held that while the state legislature clearly wanted to emphasize the child’s best interest over the custodial parent’s, there was no language in P.D. that would prohibit the court from considering enhancements to the custodial parent’s life.
If you have great opportunities to live out of state — a new job, new marriage, extended family — that will enhance your child’s life but the other parent disapproves, contact our office for help.