Moving out of State with a Child – 5 FAQs

This post was written by Sean Sullivan, head of the Family Law department at Appelman & Associates.  Sean is committed to providing his clients with the best representation in a variety of civil matters. He has also served as volunteer law clerk with the Cook County Public Defender’s prestigious Homicide Task Force.  For more information about Sean, check out his bio or give him a call at (630) 717-7801.

In my daily practice, one recurrent theme I deal with is parents who have moved out of state with their child, or are contemplating moving out of state with their child, and suddenly find themselves in a legal battle with their ex who opposes the move. It becomes particularly frustrating for clients when it seems the party objecting to the move is doing so “to get back at me and not because they really care about our child”. That very well may be, but my answer is always the same; in order to move, you have to get permission from the Court.

If the child was born in Illinois, or has resided in Illinois for the last six months, then Illinois has jurisdiction over the child. If Illinois has legal jurisdiction over the child, then the child cannot be removed from the state (on a permanent basis) without the permission of the Court. Your ex may be taking you to Court just to fight you and not out of concern over your child, but it is their legal right to do so.

What do I need to do if I want to move out of state and take my child with me?

You need to contact an attorney and seek their help in filing a motion with the Court asking for permission to remove the child from the state.

What if I am just taking the child out of state temporarily, do I need the permission of the Court?

Maybe.  It depends upon the language that was agreed upon in the joint parenting agreement or the marital settlement agreement. Both agreements typically have some language that allows for removal of the children for short periods of time, but it is best to consult an attorney and have them review either your JPA or MSA to determine this for sure.

I already moved out of state, and did not get the Court’s permission. Is anything going to happen to me?

It is very likely you could be held in contempt by the Court for taking the child out of state without permission. You should attempt to return the child to the state as soon as possible and contact an attorney.

What factors does the Court consider in letting me move my child out of state?

There are many factors the Court takes into consideration and each can be given different weight by the Court. Overall, the controlling factor in the Court’s determination is what is in the best interest of the child.

I am getting remarried, how will the Court look at that?

The Court will consider that as one of the factors it makes in its determination of what is in the best interest of your child. Getting remarried or not getting remarried is not necessarily a predictor of what the Court will decide one way or the other.

Top 5 Illinois Family Law Terms

1. “GAL” – Guardian Ad Litem. This term refers to a court appointed attorney. This is a third attorney appointed by the Judge who represents the interests of the children in the divorce. This attorney is separate and independent of any attorney either of the parents have on retainer.
2. “MSA”- Marital Settlement Agreement. This is a legal document that sets out the agreed upon terms of a divorce. It is a legally binding contract that governs all the issues that affect the parties after the divorce such as marital property, child support, custody, etc.
3. “JPA”- Joint Parenting Agreement. This is the written agreement that deals with the interests of the children. It is often included as a separate agreement that is adopted and incorporated as part of the MSA. It governs everything related to the children: who gains custody, when is visitation, how much is child support, who gets the kids for what holidays, etc.
4. “Maintenance.” The legally correct term for “alimony” in Illinois. This is the amount of money that one party pays to the other party to support them after the divorce. In Illinois the party that typically earns the higher income is the party that pays “maintenance” to the other party. Regardless of whether that party is the husband or wife. There is no hard and fast rule on what amount of maintenance the courts may award a party. Rather the courts look at the levels of income, the Parties’ standard of living, all of the marital assets, and then determine it on a case by case basis.
5. “Residential Custody.” This term relates to the parent with whom the children reside. The other parent still has “custody” over the children in that they still have a say in how to raise the children, and visitation rights. But the parent with residential custody is the parent with whom the child lives on a general day-today basis.