Child Relocation 2023 Comparisons

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:

• the wishes of the child;
• the level of conflict between the parents;
• the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; and
• each party’s historic participation in decision-making.

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:

• the woman having given birth to the child (except as a surrogate);
• an adjudication of the woman’s parentage;
• adoption of the child by the woman;
• a valid gestational surrogacy arrangement that complies with the Gestational Surrogacy Act or other law; or
• an unrebutted presumption of the woman’s parentage.

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:

• the voluntary signing of an acknowledgement of paternity;
• an adjudication of parentage;
• the adoption of the child by the man; or
• a valid gestational surrogacy arrangement that complies with the Gestational Surrogacy Act or other law.

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:

• the parent having the majority of parenting time is deceased or is disabled and cannot perform the duties of a parent to the child;
• the step-parent provided for the care, control, and welfare of the child prior to the initiation of proceedings for allocation of parental responsibilities;
• the child wishes to live with the step-parent; and
• it is alleged to be in the best interests and welfare of the child to live with the step-parent. 

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:

• being married to the birth mother at the time the child was born;
• having a child born within 300 days of the termination of the marriage to the birth mother;
• entering into a valid gestational surrogacy arrangement; or
• signing an effective voluntary acknowledgment of paternity.

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:

• the intended date of the parent’s relocation;
• the address of the parent’s intended new residence; and
• the length of time the relocation will last (if the relocation is not for an indefinite or permanent period).

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.

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.