In Illinois, a parent’s decision-making authority is codified in the statute at 750 ILCS 5/602.5, which governs the allocation of parental responsibilities. This statute sets forth the criteria for allocating significant decision-making responsibilities between the parties in accordance with a child’s best interests. The significant areas where authority to make decisions must be allocated are education, health, religion, and extracurricular activities. When determining a child’s best interests, the court is required to consider, among other things:
Under Illinois law, an unmarried biological mother is presumptively the sole custodian of her child and allocated sole parental authority by that presumption, which is controlling unless and until a claim for parental responsibility is filed by the biological father. A biological mother who is married to the biological father holds no such presumption. She must seek an allocation of parental responsibility at the time of the divorce filing.
If a biological mother’s parent–child relationship is challenged by a third party – be that the biological father or another woman claiming to be the biological mother – then statutory section 750 ILCS 46/201 governs the establishment of parent–child relationship. A parent–child relationship is established between a woman and a child by:
If a birth mother meets any of these requirements, a parent–child relationship is formed, and she has standing to request an allocation of parental responsibilities.
Except in the context of a surrogacy arrangement, a father is presumed to be the parent of a child if he was married to the mother when the child was born or if the child was born to the mother within 300 days following the termination of the marriage.
A father–child relationship may also be established between a man and a child by:
Once a parentage is established, the father must file a claim before a court of competent jurisdiction for the allocation of parental responsibility in order to establish his decision-making authority. In parentage cases (ie, where the parties were never married), this can be done at any time after the birth of the child. In marital cases, this filing is made at the time the parties file for dissolution of their marriage.
It is well settled that biological parents are presumed to have superior rights to custody and care of their child over all other persons. As a result, the courts are reluctant to grant standing to seek parental responsibility to non-parents.
A non-genetic parent, or step-parent, may seek parental responsibility in the event that all of the following circumstances are met:
If a step-parent is unable to establish standing under our Dissolution of Marriage Act, they can seek custody under the Juvenile Court Act by showing that the natural parents are unfit to have custody. In such circumstances, the parental rights of the unfit natural parent would need to be terminated by the court before the step-parent could assume those rights and parental responsibilities.
The issue of whether the mother and father are married at the point of conception or birth has on the process of obtaining parental responsibility is covered in the responses to 1.2 Requirements for Birth Mothers and 1.3 Requirements for Fathers.
Illinois parental laws do not discriminate between same-sex and opposite-sex parents. If it is a female same-sex marriage or civil union, where one person is the birth mother, then the other person is presumed a parent. This is also the case should the child be born within 300 days of the termination of the marriage or civil union. Illinois also allows same-sex parents to have both parents’ names on a birth certificate and, from that, there is a presumption that the parents listed are the child’s parents.
This is different for male same-sex couples. Both men would have to formally adopt the child in order to obtain parental rights, unless one of the men is presumed to be the father of the child by:
In either of the above-mentioned cases, only the other male parent would have to adopt the child after the birth mother has surrendered her rights.
Adoptive parents have the same rights as a birth parent would have had as soon as the adoption is finalised. At the conclusion of the adoption, a new birth certificate is issued and the adoptive parents are granted the rights of the birth parents.
In families that have separated owing to divorce, the parent with at least 50% of the allocated parenting time may seek to relocate to another country. That parent must receive the prior written consent of the left-behind parent in order to move. If the left-behind parent refuses to give their consent, then the parent seeking to relocate must petition the court of competent jurisdiction for permission.
In families that have never been married (commonly called “paternity cases”), the rule is different. In the absence of a judgment allocating parental rights and responsibilities, the mother is presumed to hold sole custody of the child. These mothers may relocate with their child without the prior written consent of the father. However, if there is an existing judgment allocating parental rights or if a petition for the allocation of parental rights has been filed and is currently pending before the court, then prior written consent must be sought and received – thereby holding the parties to the same standard as though they had been married.
In the event that the left-behind parent does not give their consent, then the parent seeking to relocate must file a petition for relocation under the Illinois Marriage and Dissolution of Marriage Act.
Prior to filing a petition with the court, the parent seeking to relocate must first give the left-behind parent at least 60 days’ written notice of their intention to relocate. The notice must set forth:
If the left-behind parent signs the notice and the relocating parent files that signed notice with the court, then no further court action is necessary. However, if the left-behind parent refuses to sign the notice or the parents cannot agree on the specific custodial terms to be implemented upon the intended relocation, then the parent seeking to relocate must file their petition for relocation once the 60-day notice window has expired – thereby putting the parties at issue before the court.
Once an application for relocation has been submitted to the court, a determination will be made predicated upon the best interests of the minor child. When assessing a child’s best interests, the court will consider various factors, including (but not limited to):
The wishes of the child are a relevant factor in the court’s determination to the extent that the child possesses the ability and maturity to express their preferences with reason and independence. Undue influence of the child is not tolerated.
Attachment to a specific parent is given strong weight. However, the court will examine whether that attachment is better maintained by denying the request for relocation and keeping the parent who represents the primary attachment in the state with the child.
As a generalisation, the preferences of older children are given more weight than the preferences of younger children. However, upon closer examination, the implicit maturity reflected in a child’s stated preference is much stronger evidence in support of a relocation – regardless of biological age.
As a case in point, a 16-year-old child may have a very strong preference predicated on immature reasoning – for example, perhaps the child is motivated by the mother’s promise to buy the child a car if the child states a preference to relocate with her. This will be given less weight than the preferences of a nine-year-old child who wants to relocate with her mother for the stated reasons that her mother fixes all her meals and helps her with her homework every night.
The concept of keeping children together in a relocation matter is weighed more heavily for younger children and becomes less of a factor as children grow older.
A court will endeavour to keep young children together primarily because their individual preferences will be given less weight and they will be assessed as a group more so than as individuals. However, as the children age and mature, their individual lives and preferences are given more weight and consideration. If these older children prefer to stay together, it is unlikely that a court will separate them. But if older children are comfortable with separation, it is unlikely that a court will stand in the way unless it is demonstrably not in their best interests to be separated.
A court is unlikely to approve of a relocation if the court is unable to fashion a reasonable parenting plan that allows for the continued participation of the left-behind parent in the lives of the relocating child.
Such a parenting plan usually provides for less frequent parenting time, but for more extended periods. A majority of the child’s school holidays will be allocated to the left-behind parent, as will time during the school year in the child’s relocated community, predicated on the left-behind parent’s ability to exercise that time. Such a parenting plan needs to provide for the exercise of parenting time in light of each parent’s financial resources and take into consideration the possible physical and emotional burdens on the child created by extensive international travel between two homes.
The parenting plan also needs to include the ability of the left-behind parent to participate in the major decisions and events in the child’s life, such as birthdays, parent/teacher conferences, religious milestones and medical procedures.
If these goals cannot be met, approval of a relocation petition is unlikely.
Any successful prosecution of a relocation petition must bring the court to the conclusion that the child’s standard of living will be improved to such a degree that the change in residency overshadows the loss the daily contact with the left-behind parent. In this respect, successful justifications for relocation often include a combination of some of the following facts.
A parent opposing relocation must be able to demonstrate that the loss of regular contact with the left-behind parent outweighs any benefits inherent in the proposed move. Litigants will often argue that the parent is proposing relocation for their own benefit, rather than the benefit of the child.
The primary focus when opposing a relocation petition should be on whether the proposed relocation is actually necessary to achieve the benefits claimed by the parent intending to relocate. For example:
If these opportunities are already available in the current jurisdiction, then approval of relocation is unlikely.
Onerous transportation obligations and financial burdens may be grounds to contest relocation. Multiple Illinois courts have denied relocation petitions on the basis of the difficulty or impossibility for the left-behind parent to exercise regular and consistent parenting time, given the need for multiple flights, hotel rooms and/or long drives to see their children (and the costs associated therewith).
A showing of bad faith is also strong evidence upon which to oppose relocation. If the objecting parent can demonstrate that the true motives for the parent seeking relocation are actually to create both physical and emotional distance between the child and the left-behind parent so as to undermine that relationship, then relocation is unlikely to be granted.
Relocation actions can be expensive. In Illinois, there is an obligation to mediate all child custody matters as a precursor to litigation. When and if mediation fails, the parties will be in litigation. And once involved in relocation litigation, parties can anticipate that the court will appoint a guardian ad litem to investigate the allegations of the relocation petition and to represent the interests of minor children in court. The court also holds the authority to appoint a psychologist or psychiatrist to conduct psychological evaluations of the parties and children to further aid the court in its assessment of the relocation petition. These professionals may need to travel to the proposed relocation destination in order to inspect a proposed home, a school or the community and then report back to the court. The costs of mediators, attorneys, and court experts are all borne by the parties.
If a relocation matter proceeds through a full evidentiary hearing, the costs will be substantial. Although costs are variable in Illinois, depending upon the specific county in which the parties are litigating, it is not uncommon for a party to spend USD40,000–USD100,000 on a full relocation trial through to final judgment.
Litigants should also keep in mind that the transportation costs necessary for the left-behind parent to exercise parenting time with the child are often assessed against the parent who relocates. The relocating parent will likely be obligated to pay for the child’s airfare to and from their parenting time with the left-behind parent. Reimbursement of the left-behind parent’s travel costs is also a possibility.
The duration of any relocation litigation can be highly variable, owing to a variety of factors, including the complexity of factual disputes, the need for time-consuming psychological evaluations, and other extenuating circumstances that may affect the need for the court to rule in advance of a date certain.
Courts may often be inclined to complete relocation litigation at a time that coincides with a change in the child’s academic calendar (eg, the end of a school year). This will ensure that children transition to a new home in time to start a new school year at their new residence. Approval of a relocation in the middle of a child’s academic year is rare, as such upheaval is deemed to be unnecessarily disruptive to the child.
On average, a relocation matter in Illinois can take approximately six months to complete. However, that average can vary dramatically, given the facts of any case and the county in which the parties are litigating.
Courts will generally be inclined to keep families together in the same geographic area. This allows children to enjoy a close and continuing relationship with both parents. In this sense, the court’s initial presumption is against the parent seeking relocation and in favour of the parent contesting the relocation.
In Illinois, a “relocation” matter is any request to move with minor children more than 25 miles away from the other parent’s current residence. As such, there is no legal distinction between a move 26 miles away from a parent’s home (but still within the State of Illinois) and a move 2,600 miles away from that home and into another country. The legal standard for review and assessment remains the same.
However, when moving to another country, the Illinois court will give consideration to that country’s status under the Hague Convention of 25 October 1980 on the on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”). It is unlikely that an Illinois court would grant a contested petition to relocate a child to a non-Hague country.
Jurisdictional concerns are not an important consideration when relocating within the USA. All 50 US states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), thereby providing uniformity in the application of jurisdictional rules to child custody matters between states. As long as the left-behind parent continues to reside in Illinois, then Illinois will maintain exclusive and continuing jurisdiction over the family under the UCCJEA, even after the relocation to another state.
Parental kidnapping, or child abduction, is a crime in Illinois. Under the law, a parent has abducted their child if – in the absence of a custodial order or in violation of an existing court order – that parent knowingly sequesters, conceals or removes a child and fails to make reasonable attempts to notify the other parent of the child’s location. As such, removing a child from Illinois without either a valid court order or the consent of the other parent is a crime. Please note that this does not apply to unmarried mothers where the biological father has neither a valid custody order nor a pending claim to establish a custody order at the time of removal.
In practice, most of the above-mentioned matters are dealt with in civil family courts and not in criminal court. Criminal prosecutions for parental kidnapping are rare, save for the most egregious cases.
In the event that a child has been removed from Illinois to another country without the necessary consent or court orders, a custody order establishing the rightful jurisdiction of the Illinois court and allocating child custody and physical possession of the minor child to the left-behind parent is a necessary first step. The left-behind parent should also contact their local police and the Federal Bureau of Investigation (FBI) in order to report the child abduction.
From there, an application for the return of the child under the 1980 Hague Convention must be made in the country where the parent in possession had fled. If that country is not a Hague signatory, then a custody application must be substantively made in the family courts of that nation. Although the prior US custody judgment may be given some weight in the foreign court, it will by no means be binding or otherwise controlling upon that court. It may, in fact, be given no weight at all.
In both Hague and non-Hague situations, the US Department of State will work with the left-behind parent to attempt to facilitate the return of the wrongly removed child through both jurisprudence and diplomatic means. The US Department of State can also be of assistance in finding reliable local counsel in the country where the child has been taken.
As a signatory to the 1980 Hague Convention, US courts will respect the properly exercised jurisdiction of other Hague signatory countries. The US Department of State issues annual compliance reports detailing pending cases and their outcomes, which can be found under Reports and Data among the Legal Information in the International Parental Child Abduction section of the US Department of State Bureau of Consular Affairs’ travel website.
Application for the return of a child wrongfully removed to the USA can be made through the US Central Authority via the International Parental Child Abduction section of the US Department of State Bureau of Consular Affairs’ travel website.
Cost and timing for completion of Hague litigation will vary dramatically in the State of Illinois, depending on the specific county in which the applicant is litigating. If cost is an issue, the US Department of State administers an all-volunteer network of attorneys called the Hague Convention Attorney Network. The attorneys within the Hague Convention Attorney Network provide pro bono and reduced-fee legal representation to qualified low-income applicants in international cases of parental child abduction to the USA. Information on the network can also be found on the US Department of State website.
When filing a Hague application with a court in Illinois, litigants may choose whether to file in federal or state court. The courts have concurrent jurisdiction on Hague issues; therefore, an application to either is appropriate. State court actions will be heard by family court judges with more extensive knowledge of the specific aspects of domestic disputes but are more often guided by equitable considerations. Federal court actions will be heard by presidentially appointed federal judges, who generally represent the highest quality of jurisprudence in the state but will be less familiar with family matters. Applicants should consult their local counsel to determine which venue is most appropriate for their specific case. Regardless of the venue, Illinois courts will generally apply the underlying principles of the 1980 Hague Convention and order the timely return of children wrongfully taken from their home countries.
When actions for the return of children to non-Hague countries are brought before Illinois courts, those courts will apply Illinois law and Illinois jurisdictional standards as set forth in the UCCJEA. Section 105(a) of the UCCJEA specifically sets forth that “a court of this State shall treat a foreign country as if it were a state of the United States for the purposes of applying [jurisdictional standards]”. In this respect, the Illinois court may decline to exercise jurisdiction over a child and thus return the child to their home country if the child has been in Illinois for less than six months. However, the exception to this general rule is where the court finds that emergency circumstances exist and it is necessary to exercise jurisdiction over the child in order to protect the child from mistreatment or abuse.
This section is not applicable to the State of Illinois, as the USA is a signatory to the 1980 Hague Convention.
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chicagoservice@sdflaw.com www.sdflaw.comChanges in Statutes Affecting Child Relocation in Illinois
Most parents do not think about what would happen if they could not agree on where their child will live. In cases where parents do not live together and do not align when it comes to life-planning, one parent may want to relocate with a child while the other parent does not or cannot join in the move. Prior to 2016, Illinois courts used a statute referred to as “the removal statute” – which required a finding that letting the child move would serve the child’s best interests – to decide questions raised when a parent wanted to relocate with a child to another state. That statute put the burden on the parent who wanted to make the move to prove the case for best interest.
The statute raised more questions than it provided answers, given that:
By way of an example, legal proof standards range from lowest to highest as follows – preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Eventually, a preponderance of the evidence standard was specified when answering these questions in cases decided in the Illinois appellate courts.
Traditional factors in court decisions
Based on case law, the main factors to consider when making the decision in the child’s best interest include:
New relocation statute
In keeping with societal evolution, the Illinois legislature updated the removal statute and redesignated it as a statute on relocation. In broad terms, the new relocation statute contemplates not only relocation outside Illinois but also relocation within Illinois – thereby recognising that a move across a state line to a new home that is an hour away does not disrupt a family as much as a move within the same state, where children could live as much as four or five hours away from a parent.
This new iteration of the statute passed the Illinois legislature in 2016. It added structure to how courts decide the issues and determined an order for making such decisions by:
Decisions after the change to the statute
Even with all that the updated statute includes, it elected not to incorporate or override the prior appellate court decisions on relocation issues. Those decisions differed from one appellate court district to another, giving rise to the belief that decisions in this area turn exclusively on the facts of each case. Decisions after the change in the statute include the following.
These decisions do not necessarily signal a relaxation in the quality of facts that will lead to a successful relocation, although (or regardless of whether) they signal a difference in what prompts a parent to seek relocation. The decisions remain fact-specific – with no one factor having any greater importance than any other factor – and turn largely on having evidence for each factor and an absence of poor attitude on the part of the relocating parent towards the other parent’s relationship with the child.
On the procedural side, the appellate court discussed the principles determining the kinds of removal decisions a parent can appeal right after a decision and which kinds of removal decisions must wait until all case issues resolve. A decision on relocation that modifies parenting time or parental decision-making does not have to wait for all case issues to be resolved before an appeal. A decision that denies a request for relocation does not qualify under the Supreme Court Rule that allows the immediate appeal of decisions about custody judgments, parenting allocation judgments, and orders that modify such judgments.
Another procedural rule discussed in relocation decisions under the new iteration of the statute relates to the standard of review the appellate court applies. One standard of review decides whether the trial court abused discretion, whereas another – known as “de novo review” – allows the appellate court to decide the issue as though hearing the case for the first time. Owing to the fact-intensive quality of these decisions and the trial court being the only court to observe the demeanour of witnesses, appellate courts will only reverse if they decide that the trial court made a decision that was clearly against the manifest weight of the evidence and it appears that manifest injustice occurred. This makes a decision of the trial court in a relocation matter among the most difficult to overturn.
Role of unpublished opinions in relocation matters
Illinois Supreme Court Rule 23 (“Rule 23”) mandates that appellate courts enter summary written orders instead of full opinions in certain types of cases. They only decide a case in an opinion when a majority of the panel deciding the case determines that the case satisfies at least one of the following criteria:
Most relocation cases that turn on facts will not satisfy the criteria for an opinion, so the rule requires that they be decided by a written order. These concise written orders must succinctly state:
Any opinion or order entered under the portion of the rule requiring a written order is not precedential, except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case. A non-precedential written order entered on or after 1 January 2021 may be cited for persuasive purposes. When cited, a copy of the order must be furnished to all other counsel and the court. Written orders will have a notice on the first page that reads “NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(l)”.
Since the passage of the new relocation statute, appellate courts have decided the lion’s share of relocation cases using Rule 23 written orders instead of opinions. This stands as testament to the tendency of relocation cases – apart from those that decide against parents who act in bad faith – to resist trends, instead letting each case’s facts drive the analysis.
Practical considerations
Although not part of the relocation statute, the portions of the Illinois statutes that deal with children use the nationwide principles of the Uniform Child Custody Jurisdiction Enforcement Act to decide which of the 50 states will have the right to make decisions about a child. They call this “continuing exclusive jurisdiction”. It means that whichever state has the jurisdiction to make decisions about custody or parenting allocation issues also gets to make the decision about relocation.
At the time of writing (September 2023), no federally mandated uniform law requires all the states to make decisions about relocation using the same set of rules. As a result, trends in this area include the need for parents thinking about both divorce and relocation at the same time to consider the differences between the laws that direct how courts decide parenting issues in their state of residence and those of the destination state when deciding whether:
When parents – whether married or not – finish court proceedings concerning who gets to make parenting decisions and what parenting schedule they will use while they live in the same geographic area, they do not anticipate possible later court proceedings over a move. Court orders or judgments on parenting cannot be locked in stone, which makes the possibility of change inevitable. For this reason, parents should continue to track aspects of their parenting relationship, such as:
Many parents who reach agreements about their children never experience court proceedings. The court process involves putting testimony into evidence. To structure testimony effectively, the questions and answers need to lay the foundation by providing certain background information, which can be difficult to recall with the passage of time. Making notes of dates, locations and persons present during conversations or occurrences and being sure to retain copies of records and communications from school and activity providers and medical professionals can help meet the criteria for getting evidence before a court.
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