Illinois Matrimonial and Family Law -- Removal 101

Wes Cowell

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Child Custody Lawyer - Chicago, IL

Contributor Level 19

Posted about 2 years ago. Applies to Illinois, 1 helpful vote

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How "removal" works in Illinois. What to do. What NOT to do.

1

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.

2

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.

3

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.

4

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 relationship, how will you pay for the travel, who will do the driving, etc.

5

The Factors . . . The Eckert Factors

The various appellate districts handled removal cases very differently up until 1988. Then, the Illinois Supreme Court decided that application of the law was out-of-balance and sought to make things more uniform. In the case of In re: Marriage of Eckert, the Supreme Court instructed judges faced with removal cases to consider: 1. The likelihood that the move will enhance the general quality of life for both the custodial parent and the child(ren);2. The "moving" parent's motives to determine whether the removal is merely a ruse intended to defeat or frustrate visitation;3. The "staying" parent's motives in resisting the removal;4. That is in the best interest of the child to have a healthy and close relationship with both parents and5. Whether a realistic and reasonable visitation schedule can be reached if the move is allowed.All of these can be summed up as "best interests." The name of the game is "the best interests of the child."

6

The Collingbourne Case -- A Happy Parent Makes for a Happy Child

Courts applied the Eckert factors differently. Some courts focused on the "economic exigencies" of a proposed removal. They held that an indirect benefit to the child through the moving parent could be sufficient to justify a move -- "A happy parent makes for a happy child; so the move may benefit the child, albeit indirectly." Other courts took the first Eckert factor to mean that the child had to experience a direct benefit from the move -- an indirect benefit to the child was insufficient. This situation went on for years. Success or failure often depended not so much on the facts, but hte county in which a case was filed.In 2003, the Illinois Supreme Court endorsed the happy parent = happy child logic in a case called Collingbourne. The Eckert factors are still the law of the land but the benefit realized by the child may be indirect . . . and it applies to all cases everywhere in Illinois

Additional Resources

Illinoisdivorce.com

Illinois' removal statute

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