What Happens if I File for Divorce in Illinois but my Child Lives Somewhere Else?
While it is fairly common for someone to move to a different state once they separate from their spouse, doing so can present potential difficulties when formally filing. Add children to the mix, and the situation rapidly becomes more complex. Here’s what you need to know.
All states require that the spouse who files for divorce be a resident of the state in which they file their divorce petition. If you’re seeking an Illinois divorce and have children, you may be wondering what the proper steps are to take. You may also want to know how you can get full custody in Illinois, and what criteria a judge uses to determine a child’s best interests.
Here, Masters Law Group provides an overview of Illinois custody laws and answers to common questions about custody in Illinois, cross-border custody, and international custody matters via the Hague Convention. If you have additional questions after reading this article, contact your trusted law attorneys at Masters Law Group. We’re here to help you every step of the way.
Establishing Child Custody in Illinois
The term “custody” is no longer used in the law. It is now called “parental responsibilities.” This includes parenting time (formerly “visitation”) and decision-making power.
Divorcing parents who live in Illinois will receive an Allocation of Parental Responsibilities/custody order as part of their divorce case. Things can get complicated if parents live in different states or a parent has recently moved into or out of the state. Before an Illinois judge can issue a custody order, the Illinois court must have jurisdiction over your case.
In order to avoid conflicting custody opinions from courts in different states, a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets the rules on which court has jurisdiction.
Among other things, the UCCJEA determines which state is the child’s “home state” for custody matters. Courts in the home state have jurisdiction over custody litigation involving that child and are the only ones that can hear a custody case for that child.
Illinois has jurisdiction to hear a child custody case if:
- The child has lived in Illinois for the last six months.
- The child lives out of state, but lived in Illinois within the past six months and one of the child’s parents still lives in the state.
- No other state is the child’s home state and either (1) the child and at least one parent have significant connections with Illinois, and (2) substantial evidence exists in Illinois concerning the child’s care, protection, training, and personal relationships.
The UCCJEA and associated rules can be complex and hard to understand. If you’re unsure whether your child custody case should be heard in Illinois or in another state, you should consult with an experienced attorney.
Determining a Child’s Best Interests in Illinois
Even when parents agree on custody, a judge must ultimately determine what custody arrangement would be in the child’s best interests. The emphasis in a custody determination is not on which parent is “better or worse”, but solely on the child’s safety and happiness.
Here are some of the following factors to consider:
- Both parent’s wishes.
- The child’s wishes.
- The child’s adjustment to their home, school, and community.
- The parents’ and child’s physical and mental health.
- Whether there has been physical violence by either parent, either directed against the child or another person.
- Whether there has been ongoing or repeated domestic violence, either directed against the child or directed against another person.
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
Every case is unique, and the court is free to decide what weight to give to these and other factors in making its decision. However, Illinois custody laws expressly state that the court should not consider a parent’s marital conduct unless it affects that parent’s relationship with the child. Judges will typically give both parents maximum involvement in the child’s life.
Can a Parent With Primary Physical Custody Relocate Out of State?
Illinois Courts require that a parent looking to permanently relocate a child from the State of Illinois have a written agreement and/or Court Order allowing the move. There are a variety of factors the Court will consider in adjudicating whether the move is within your child’s best interest. The parent who wants to relocate with the child out of state bears the burden of proving that the move serves the child’s best interests. A court must consider the following factors in determining whether a proposed move to another state is in the best interests of the child:
- Whether the move will enhance the general quality of life for both the custodial parent and the child.
- Whether the custodial parent’s proposed move is a ruse to frustrate or defeat the other parent’s visitation rights with the child.
- The motives of the noncustodial parent in resisting the removal.
- Whether a reasonable visitation schedule can be achieved if the move is allowed.
The parent seeking to move must prove that it is in the best interests of the child, not just the parent’s best interests. A judge will want to address housing arrangements, job opportunities, neighborhood and school quality, available activities for the child, and a well-considered plan to keep the child in touch with the left-behind parent. Some judicial districts in Illinois are more lenient about allowing removal than others. An experienced lawyer will know what to expect from the judges in your district.
Unless the parties have agreed in writing to the contrary, a custodial parent may remove the children to another part of the state without a court order. However, because this will bring about a significant disruption in the child’s relationship to the other parent, such a move could be considered a material change in the child’s circumstance, which could be the foundation of a petition for custody modification.
A permanent relocation is different from a vacation. Parents are free to take the child out of state on a temporary vacation as long as the court order allows it and the traveling parent provides the other parent the address and telephone number where the child may be reached while out of state, and the date on which the child will return to Illinois.
What Happens if my Ex Want to Move Across International Borders?
International child custody cases are on the rise due to the mobility of couples who either desire to live abroad, move back to their home country or who receive international job assignments.
While legal issues involving Parental Responsibilities are common, many do not know what to do when their child/children are taken overseas. It’s important for the residents of the Greater Chicagoland area who share custody of their children know about the ins and outs of the Hague Convention should this occur.
Accredited family law attorneys Erin Masters and Anthony Joseph of Masters Law Group have extensive experience in cases involving international child abduction disputes in both courts located in the State of Illinois and the United States federal court system.
Masters Law Group Featured Hague Decisions:
- Sulcaite, Memorandum Opinion and Order
- Ho, Memorandum Opinion and Order
- Hinnendael, Decision and Order
At Masters Law Group, we know the requirements parents must abide by when they want to move, and we know how to challenge the move so you do not lose out on time with your child.
If you’re faced with an out-of-state divorce or international custody battle, our skilled and knowledgeable family law attorneys can help educate you on your options, and provide legal assistance if your child is being taken out of Illinois.
Masters Law Group understands that divorce is a stressful situation and that our clients want to move on with their lives. Especially when children are involved. As such, we move through settlement negotiations, mediation or litigation with our clients’ assurance and well being in mind.
Our firm’s attorneys are ready to skillfully advocate for your position and provide your voice when you need it most. Schedule a consultation with us today to discuss our divorce services.