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What steps do I need to move with my kids out of state without the other parent?

Galena, IL |

I want to move from IL to WI with my children, what steps do I need to take in order to not get caught in contempt of court or kidnapping? We have no court orders in place as far as child custody, support, ect. In fact our divorce has not even been filed yet because he refuses to help with the expense and I don't feeli it is my 100% responsibilty to pay for it.

Attorney Answers 3

  1. You need to discuss this wth a divorce lawyer in Illinois BEFORE you move. Do it now. There is a removal statute that states you must have the permission and consent of the other parent or the court that comes into play once you file for divorce.

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  2. What you must do, may do, and must not do . . . and what happens when you do it wrong.

    The Basics

    "Removal" is the legal term of art lawyers and judges use to describe the situation where a divorced parent (or a parent who never married but has followed through with legal action regarding the child; like, signing a VAP, establishing child support, etc.) wants to move out of state and take the kid(s) with him / her. The law does not affect parents who are still married to each other. If you're married, or have had no contact with the family-law legal system (no VAP, no child support order, no administrative proceedings), you can pack up and move anywhere you want, any time you want. If things are happy and amicable between you and the other parent, there shouldn't be a problem. If, however, you're having problems, fighting, talking about going to court, etc., and you pack up the kids and move back to your parents' home out-of-state, or move out-of-state to start a new job, or move to be with a new fiance/partner, you're setting the table for a disaster.

    What Not to Do: The Worst Case Scenario:

    Every family law attorney has seen this: Mom says she is divorced from (or never married) Dad, they've been through court, he pays support but is behind, she needs help and has a job offer out-of-state near the rest of her family. If she could only leave the state she could 1) get a better job paying more and affording her more time with the kids, 2) have a support network (her family) that would reduce her reliance on after-school care and babysitters, 3) put the kids in a better neighborhood, school, etc., and Dad could see the kids "whenever he wants." The lawyer tells her "don't do it without a court order -- let's draw up an agreement and have Dad sign it, present it to the judge, and have it entered in the court record. Otherwise, let's file papers, take six to nine months and do this through the court system -- the right way -- over Dad's objection." She says she knows Dad will ultimately consent to the relocation, disregards the advice, packs, and moves.

    What Not to Do: The Consequences

    Mom calls back a week later. She moved, anyway. She has a job, rented a house, turned on utilities, registered the kids in school, got a new driver's license, bank account, etc. She received court papers from Dad's attorney: he want the kids back in Illinois, NOW. "What do I do?" she asks. The lawyer tells her to file papers 1) opposing Dad's request that she return and 2) asking the court belatedly for permission to take the kids out of state. She's out of money, having sunk her savings into the move. She doesn't have the rental house in Illinois and she can't go back to the job she quit. "I'm stuck. The judge won't make me move back, will he?" No, the judge doesn't care if Mom moves back . . . just the kids. The judge denies her request to stay out-of-state and she must choose: finance a fight, accept that she'll live in Illinois forever, or stay but surrender the kids back to Dad, in Illinois. Should've listened to the attorney at the initial consultation.

    What To Do -- The Right Way to Approach a Removal Case

    Hire a lawyer at the start -- you'll need advice and counsel at every step of the process. Think of the fees as part of the cost of the move -- just one more expense (without which, the move probably will not be possible). Plus, done right, you'll recover the fees in savings from fights you'll avoid in future. Plan on a three-to-six-month time frame for the court case. If you have a job offer with a deadline, address it: get an extension, look for another job, or shoot for the moon on an expedited case timeline. Give your lawyer ammo. If the other party doesn't diligently exercise visitation, is behind on support, has had some scrapes with the law, etc; tell your attorney. Give your lawyer some leverage. Look at the school calender and figure out a schedule: easy enough on the child but plenty of contact to maintain the relatio

  3. Since you are still married and there is no divorce pending, you have every right to remove your children from the state of Illinois. However, your children are residents of this state and will continue to be until you have lived in WI for 6 months. Therefore, until your children are no longer residents of IL, if you move, your husband has every right to demand that you return them. if your husband agrees that the children should be moved to Wisconsin, perhaps this can be accomplished with relative ease but you will need the help of a lawyer.

    You really do need an experienced family law practitioner. Although you do not feel it is your "responsibility" to incur those expenses, this is your children you are talking about. Sometimes money must be spent for the good of the children.

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