Relocation of Children with the New Illinois Law

The year 2016 brought about some striking changes to Illinois child custody laws with revisions to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5). Some of these revisions include removal of the term custody in favor of allocation of parental responsibilities, the introduction of decision-making responsibilities, the re-categorization of important decisions parents make in their child’s life, and significant changes to what happens when a custodial parent chooses to move residences.

This article will be focusing primarily on moving and relocation. But to offer a short summary, Senate Bill 57 went into effect on January 1, 2016, officially changing custody laws in the Illinois Marriage and Dissolution of Marriage Act (IMDMA) for the first time in many years.

Old Illinois Child Custody Law

Previously, custody laws relied on the concept of, well, custody. It allowed for sole custody to be allocated to one parent with visitation rights to the other parent, or joint custody to be allocated to both parents. There were two categories of custody: legal custody or physical custody. Legal custody was the responsibility over making decisions in a child’s life. Physical custody, on the other hand, determined who would live with the child.

What the new 2016 law does is completely remove the concept of custody and any of its types — legal, physical, joint, and sole. Instead, custody is replaced with parental responsibility, which is divided into two factors: decision making responsibilities and parenting time. Decision making responsibilities replace the concept of legal custody, and these responsibilities are divided into four areas of decision-making in a child’s life: education, health, religion, and extracurricular activities. The court is appointed the ability to allocate each these responsibilities to either parent in a manner which best suits the interests of the child. Parenting time, on the other hand, is a revamped version of physical custody, where the court decides how long the child spends residing with each parent.

Overall, the revised IMDMA takes a more child-centered approach to the allocation of parental responsibilities post-divorce. Emphasis is placed on the best interests of the child, and the court is required to examine many facets of a child’s well-being when determining parental responsibility. For further information, this previous blog post explains the changes to the IMDMA in detail, while a word-for-word legal text of the statute is available here.

Illinois Law Regarding Relocation of Children

Like parental responsibility, relocation is a newly defined term which replaces older terminology. The new revision fills loopholes and introduces new, universally applicable guidelines which ensure all families seeking relocation are held to the same standard. Inconsistent variables such as state boundaries can no longer create unnecessary or illogical restrictions on parents seeking to move out of state.

Old Illinois Child Relocation Law

Under the old law, a parent with primary custody could only move outside of Illinois after the court permits it. Even if the move was a short distance, the moving parent would be required to get permission from the court. The action of moving was legally referred to as ‘removal of child’ and the court considered a number of factors when deciding whether or not to grant permission.

Factors Illinois Courts Considered when Deciding to Allow ‘Removal of Child’

  • The potential of the move to positively impact the quality of life for the child and custodial parent
  • The likelihood of establishing a reasonable visitation schedule
  • Whether the custodial parent remarries in another state
  • The job opportunities available to the custodial parent in the new state
  • The motives of either parent in seeking to move or objecting to the move

On the other hand, a parent with sole or primary custody could move to any other location within Illinois, and they would not be required to seek court permission. While the court had the ability to put a reasonable limit on the distance moved if necessary, the moving parent did not need permission if they remained within the state.

New Illinois Child Relocation Law

First and foremost, the new law introduces the concept of relocation. Previously, the act of a custodial parent moving to a new household would be referred to as removal of child. But much like renaming ‘custody’ to ‘parental responsibility’, the term ‘removal of child’ is recycled and replaced with ‘relocation’.

Section 600 of the IMDMA defines relocation as:

  • “a change of residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence”
  • “a change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child’s current primary residence; or”
  • “a change of residence from the child’s current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence.”

It quickly becomes apparent that the definition of relocation relies on distance. The last item on the list does mention state borders, but state borders alone does not define relocation. As the statute specifies, even when moving out of state, the distance between the primary residence and new residence must be more than 25 miles for the move to be considered a relocation. It is the same standard as what would be applied to a parent from Cook, DuPage, Kane, or a few other Illinois counties, if they were seeking to move within the state.

The new distance-based definition of relocation restructures the entire system of moving with a measurable, standardized set of parameters. It is a marked improvement from the previous parameters — an improvement which we will discuss later in this post.

Relocation of Children Across State Lines

In addition to introducing the concept of relocation, the new law also eliminates the absolute necessity of court permission when moving out of state. In fact, the conceptual difference between moving in-state and out-of state is scrapped completely. Instead, any parent seeking to relocate — and here, relocate is defined as any move which falls under the legal definition, regardless of state borders — is required to make advanced written notice to the non-moving parent. This new requirement eliminates the necessity of appearing in court, which can potentially save much time and effort. And it holds accountable any parent who is moving a significant distance away.

Written Notice of Relocation

Now, if a parent is relocating, they are required to send advance written notice in writing to the other parent, clearly stating their intention to move. The written notice must include the following:

  • The anticipated date of the move
  • The address of the new residence
  • If the move is not permanent, the length of stay

The notice must be given at least 60 days in advance of the moving date, unless the court rules a shorter time is acceptable.

If the non-moving parent agrees with the relocation, they simply have to sign the notice for the moving parent to file in court. Then, relocation will be immediately granted. The moving parent will need to file a petition and seek court permission if and only if the non-moving parent disagrees or does not sign the written notice.

How Has IL Child Relocation Law Changed in 2016?

In the revised IMDMA, relocation is solely defined by distance rather than state boundaries. In simple terms, it equalizes previous discrepancies where the amount of action a moving parent is required to take does not always accurately reflect the significance or potential impact of a move.

Say, for example, you reside right on the northern border of Illinois, barely five miles away from the Illinois-Wisconsin border. With the previous law, you would be required to seek court permission if you were to move even 10 miles across the border into Wisconsin, despite it being barely a 15 minute drive from your old residence. Would that short move really impact visitation, or your child’s relationship with their other parent? Hardly. But under the old law, even if the move would be barely enough of a distance to affect your child’s lifestyle or relationships, you would have been required to go through the tedious process of receiving court permission.

On the other hand, someone else who lives in the same town as you could easily move all the way to Carbondale — which is a significant distance away and would have a large impact on their child’s life — without having to get court permission at all.

There’s a big discrepancy there — a gaping loophole which can easily be taken advantage of. The new law fills in much of that hole.

Additionally, the old law required court permission for specific cases where a parent is moving out-of-state. The state border issue aside, there is also a level of excess in universally requiring court permission regardless of the details in a situation. Having to petition the court and ask for permission to move can be a hassle and cause unnecessary tension or stress, especially if both parents could have efficiently settled the issue without having to go through a judge. Now, a parent seeking to relocate has the option of simply gaining consent from the non-moving parent and settling relocation independently. While the court is still available, it is now offered as an option if needed, rather than a required obstacle.

In the simplest terms, the old standards of removal of child have been exchanged for relocation in the new IMDMA. Relocation knocks down previous rules for a more consistent set. Someone moving a five minute drive across a state border will no longer have to seek court permission simply because a border happens to be in the way. At the same time, someone moving hundreds of miles within a state will be required to get either consent from the non-moving parent or file a petition with the court. Because of its dependable definition, the new law is better suited to both protect a child’s interests as well as hold all parents equally accountable to the same set of standards.