How Do the Child Custody Laws Affect Moving Out of State

One of the most difficult issues for divorced parents is what to do when the custodial parent has the opportunity to relocate out of state. Frequently, the noncustodial parent opposes the move because it means reduced time with the children and added expense and inconvenience in communicating with or seeing them. Illinois courts presume that the involvement of both parents in their children’s lives is in the best interests of the children. The courts also hold that a noncustodial parent should not lose all of his or her rights and privileges as a parent simply because he or she does not retain custody.

When the issue of an out-of-state move does arise, courts consider the best interests of the child first. This determination is made by examining the individual circumstances of each case. Courts look at the following factors in determining whether removal from the state will be in the child’s best interests: (1) the likelihood that the proposed move will enhance the general quality of life for both the child and the custodial parent; (2) the motives of the custodial parent in seeking to move; (3) the motives of the noncustodial parent in resisting removal; (4) the visitation rights of the noncustodial parent; and (5) whether a reasonable and realistic visitation schedule is possible if the move is approved. In reality, it is often very difficult to obtain permission for an out-of-state removal if the noncustodial parent objects.

If a custodial parent petitions the court for permission to move to a different state in order to accept a better job, some courts will consider the financial advantages to the parent as well as the indirect benefits to the child. Indirect benefits may include having more money for a better lifestyle, increased happiness and fulfillment of the custodial parent (which would have positive effects on the child), and improvement of a parental health condition (which would benefit the child).

Other courts refuse to consider indirect benefits and will only allow removal if it directly benefits the child. Direct benefits include improvement of a child’s health condition (such as asthma or allergies), better educational opportunities not available in the home state, enhanced relationships with extended family residing in the removal state, or the opportunity of the custodial parent to spend more time with the child due to changed circumstances in the removal state. However, the direct benefits to the child must still outweigh the benefits that he or she would receive by living near the noncustodial parent. This is particularly true if the noncustodial parent will have great difficulty in visiting and communicating with the child because of financial or job constraints.