| Family Law
Relocation: the Evolving Standard
Illinois courts are fine-tuning the standard they use to determine when to permit a custodial parent to move out of Illinois. Are you keeping abreast of developments?
Cutting edge legal issues are not always esoteric. In 1975, the California Appellate Court affirmed a decision against a family law lawyer, holding he should have anticipated that military pension plans would become community property under California law. Smith v Lewis, 13 Cal 3d 349, 530 P2d 589 (1975). This was cutting edge. Similarly, the custodial parent's application to remove a child from the state is becoming a cutting edge issue in Illinois. Practitioners and judges should be aware of the direction the law appears to be taking. Under section 609 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/609, removal should be granted if it is in the best interest of the child. The five Illinois intermediate courts of review were inconsistent in their views as to circumstances that allowed removal. This disarray caused the Illinois Supreme Court in 1988 to state a formula for removal in In re Marriage of Eckert, 119 Ill 2d 316, 518 NE2d 1041 (1988). The supreme court set out five factors to be considered by the trial court.1 One was "that the move will enhance the general quality of life for both the custodial parent and the children." On this factor the second appellate district (comprising the northern two tiers of counties) held there must be direct benefits to the child – indirect benefits would not carry the day. The "indirect benefits" approach assumes that what enhances the quality of life for the custodian does the same for the child. After the second appellate district denied a number of removal cases because there were only indirect benefits to the child, the Illinois Supreme Court re-entered the removal arena with the 2003 case of In re Marriage of Collingbourne, 204 Ill 2d 498, 791 NE2d 532 (2003). Collingbourne held that the benefit to the child can be indirect. The next time the second appellate district addressed the issue of indirect benefit to children, in an opinion by Justice Susan Fayette Hutchinson, the second district accepted that indirect benefits to the child can be a basis for removal. In re Marriage of Repond, 812 NE2d 80 (2d D 2004). Nationally, removal has been addressed in several ways: 1. In some states, removal is a ground for modification of custody, triggering the general modification standard. 2. In some states (including Illinois), the noncustodial parent has, in effect, veto rights unless the custodial parent can prove the removal is in the best interest of the child. 3. A recent trend has been "notice" statutes, which require the moving parent to give notice to the noncustodial parent and places the burden of objecting to the move on the non-moving parent. This approach is the standard recommended by the American Academy of Matrimonial Lawyers. In Illinois, the leading proponent of liberalizing removal is Justice Robert Cook of the fourth appellate district. Justice Cook addressed removal in a number of cases, but his approach to removal seems to be most fully stated in the 2000 case of In re Marriage of Shaddle, 317 Ill App 3d 428, 740 NE2d 525 (4th D 2000). Here, Justice Cook does not see the justice in the noncustodial parent not having restrictions on where he can move, but restricting the right of the custodial parent to move. Justice Cook stated: We disagree with any implication that a noncustodial parent is free to marry whomever he or she wants to, but a custodial parent is not. [Citations omitted]. The trial court cannot order a custodial parent to remain in the state, nor can the trial court hold it against her if she legitimately decides to leave….An ex-wife who chooses to remarry and move out of state cannot be criticized for that decision, in the absence of any showing that she did so in an attempt to frustrate visitation or interfere with the relationship between the ex-husband and the child.….Custodial parents should not be expected to give up careers for the sake of remaining in the same geographic location….That is even more true of the spouses of the custodial parents.2 As lawyers deciding a course of conduct we will take, both professionally and sometimes personally, we will draw out a scenario to its ultimate possible conclusion and measure if the game is worth the prize. Thus lawyers and judges should look at relocation in terms of the ultimate issue. Would it be in the best interest of the child to place the custodial parent in the position where he or she must choose between the advantages of relocation and relinquishing custody of the children? 1. (1) the likelihood that the 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 to move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent in resisting the removal; (4) that it is in the best interest of the child to have a healthy and close relationship with both parents and therefore the visitation rights of the noncustodial parent should be carefully considered; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. 2. Shaddle at 433-34, 740 NE2d at 529-30. H. Joseph Gitlin practices family law in Woodstock and is the author of Gitlin on Divorce: A Guide to Illinois Matrimonial Law (LexisNexis). |