RELOCATIONc.ymcdn.com/.../CH_5_Relocation_Roalfs.pdf11/2/2015 6 750 ILCS 5/609.2(d) continued The...

11/2/2015

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RELOCATION750 ILCS 5/609.2

750 ILCS 5/609 – REMOVAL - REPEALED

No more removal. REMOVAL = RELOCATION (At least for the IMDMA.Maybe not for the Parentage Act)

MORE RESTRICTIVE = Can NO LONGER move anywhere in the State ofIllinois

BUT LESS RESTRICTIVE = Can move OUT of State of Illinois

No IRMO Eckert Factors

No IRMO Collingbourne Factors

STILL – Best Interest of Child Standard

Family Law Legislative Update November 5, 2015

Ch. 5 Page 1

11/2/2015

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750 ILCS 5/609 – REMOVAL - REPEALED

NO 609(b) replacement – requirements for temporary removal Previously had to provide the address and phone number where the child could

be reached while out of the State

Previously had to provide the date the child would return

NO 609(c) replacement – wherein the court was not allowed to use the availability of electronic communication as a factor in support of removal

750 ILCS 5/600 Definitions

(g) “Relocation” means: (1) A change of residence from the child’s current primary residence located

in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a newresidence within this State that is more than 25 miles from the child’s currentresidence;

(2) A change of residence from the child’s current primary residence locatedin a county not listed in paragraph (1) to a new residence within this State thatis more than 50 miles from the child’s current primary residence; or

(3) A change of residence from the child’s current primary residence to aresidence outside the borders of this State that is more than 25 miles from thecurrent primary residence.


Ch. 5 Page 2

11/2/2015

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LAKE COUNTY PURPOSES

Can you now move over the border to Wisconsin if it is less than 25 milesfrom your address? YES Many will be able to move to Kenosha, Pleasant Prairie, Bristol, Trevor, Salem,

Wilmot

Can you now move in Illinois from Lake County to Carbondale? NO

Can you now move in Illinois from Gurnee to Schaumburg? NO

Can you now move in Illinois from Barrington to Schaumburg? YES, as longas it is under 25 miles


Ch. 5 Page 3

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750 ILCS 5/609.2(a)

(a) A parent’s relocation constitutes a substantial change in circumstancesfor purposes of Section 610.5

750 ILCS 5/610.5 is the new 750 ILCS 5/610 which addresses modification ofallocation of parental responsibilities (formerly modification of parentingagreements and judgments)

Does this trump the 2 year period in 750 ILCS 5/610.5(a), which only allowsmodification earlier than 2 years for serious endangerment or if there is amarriage or residency with a sex offender?

750 ILCS 5/609.2(b)

(b) A parent who has been allocated a majority of parenting time or eitherparent who has been allocated equal parenting time may seek to relocatewith a child.

In our old terms, the parent with custody would seek removal

Does equal time include sleeping hours or only waking hours? What aboutschool hours when neither parent is with the child?

Potential problem: A parent with 49% of the parenting time can moveand not seek relocation. This may be a substantial change in circumstances, but not statutorily

Potential resolution: Court may reduce the parent’s time further


Ch. 5 Page 4

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750 ILCS 5/609.2(c)

(c) A parent intending a relocation, as that term is defined in paragraph(1), (2), or (3) of subsection (g) of Section 600 of this Act, must providewritten notice of the relocation to the other parent under the parenting planor allocation judgment. A copy of the notice required under this Sectionshall be filed with the clerk of the circuit court. The court may waive or sealsome or all of the information required in the notice if there is a history ofdomestic violence.

See Notice of Intent to Relocate form provided

750 ILCS 5/609.2(d)

The notice must provide at least 60 days’ written notice before the relocationunless such notice is impracticable (in which case written notice shall be givenat the earliest date practicable) or unless otherwise ordered by the court. At aminimum, the notice must set forth the following: (1) the intended date of the parent’s relocation;

(2) the address of the parent’s intended new residence, if known; and (3) the length of time the relocation will last, if the relocation is not for an

indefinite or permanent period Define impracticable…

See Notice of Intent to Relocate form provided


Ch. 5 Page 5

11/2/2015

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750 ILCS 5/609.2(d) continued

The court may consider a parent’s failure to comply with the noticerequirements of this Section without good cause (i) as a factor indetermining whether the parent’s relocation is in good faith; and (ii) as abasis for awarding reasonable attorney’s fees and costs resulting from theparent’s failure to comply with these provisions.

May think the person who wants to relocate is acting in bad faith

May award attorney’s fees and costs

750 ILCS 5/609.2(e)

If the non-relocating parent signs the notice that was provided pursuant tosubsection (c) and the relocating parent files the notice with the court,relocation shall be allowed without any further court action. The court shallmodify the parenting plan or allocation judgment to accommodate a parent’srelocation as agreed by the parents, as long as the agreed modification is inthe child’s best interests.

When does the court modify the parenting plan or allocation judgment if nofurther court action is required?

If no further action is required, when would the court determine modification isNOT in the child’s best interests?

What if you agree to a relocation but not the parenting plan? See new BIOC factors in 602.5(c) as 602 is repealed See consent section of Notice of Intent to Relocate form provided.


Ch. 5 Page 6

11/2/2015

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750 ILCS 5/609.2(f)

(f) If the non-relocating parent objects to the relocation, fails to sign thenotice provided under subsection (c), or the parents cannot agree onmodification of the parenting plan or allocation judgment, the parentseeking relocation must file a petition seeking permission to relocate.

Does this contradict 5/609.2(e)?

Does the relocating parent have to turn in a new parenting plan orallocation judgment signed by the non-relocating parent in order to haveagreed relocation?

If so, is this at the same time as filing the Consent?

Burden is on parent seeking relocation.

750 ILCS 609.2(g) -- FACTORS

The court shall modify the parenting plan or allocation judgment inaccordance with the child’s best interests. The court shall consider thefollowing factors:


Ch. 5 Page 7

11/2/2015

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750 ILCS 609.2(g) – FACTORS cont.

(1) The circumstances and reasons forthe intended relocation (Eckert);

(2) The reasons, if any why a parent isobjecting to the intended relocation(Eckert);

(3) The history and quality of eachparent’s relationship with the child andspecifically whether a parent hassubstantially failed or refused to exercisethe parental responsibilities allocated tohim or her under the parenting plan orallocation judgment (Eckert);

(4) The educational opportunities forthe child at the existing location and atthe proposed new location (Eckertquality of life factor);

(5) The presence or absence ofextended family at the existing locationand at the proposed new location(Collingbourne);

(6) The anticipated impact of therelocation on the child (Eckert quality oflife factor);

750 ILCS 609.2(g) – FACTORS cont.

(7) Whether the court will be able tofashion a reasonable allocation ofparental responsibilities between allparents if the relocation occurs (Eckert);

(8) The wishes of the child, taking intoaccount the child’s maturity and abilityto express reasoned and independentpreferences as to relocation (BestInterest);

(9) Possible arrangements for theexercise of parental responsibilitiesappropriate to the parents’ resourcesand circumstances and thedevelopmental level of the child (seemssimilar to factor 7);

(10) Minimization of the impairment to aparent-child relationship caused by aparent’s relocation (seems similar tofactor 7);

(11) Any other relevant factors bearingon the child’s best interests (Eckert).


Ch. 5 Page 8

11/2/2015

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750 ILCS 5/609.2(h)

If a parent moves with the child 25 miles or less from the child’s currentprimary residence to a new primary residence outside Illinois, Illinoiscontinues to be the home state of the child under subsection (c) of Section202 of the Uniform Child-Custody Jurisdiction and Enforcement Act. Anysubsequent move from the new primary residence outside Illinois greaterthan 25 miles from the child’s original primary residence in Illinois must bein compliance with the provisions of this Section.

This means that if you are in East St. Louis, St. Clair County, Illinois, you canmove 50 miles inside the State of Illinois. You can also move to Missouri butit must be within 25 miles from your original address – not 50.

750 ILCS 5/609.2(h) – EXAMPLE 1

Original Address: 5101 Washington Street, Gurnee, Illinois

New Address: 912 56th Street, Kenosha, Wisconsin

Distance: 22.2 miles

Second New Address: 730 Wisconsin Avenue, Racine, Wisconsin

Distance from New Address: 10.6 miles

Distance from Original Address: 32.0 miles CANNOT MOVE WITHOUT FOLLOWING RELOCATION PROVISIONS


Ch. 5 Page 9

11/2/2015

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750 ILCS 5/609.2(h) – EXAMPLE 2




Second New Address: 11517 U.S. 12, Richmond, Illinois


Distance from Original Address: 25.7 miles CANNOT MOVE WITHOUT FOLLOWING RELOCATION PROVISIONS

750 ILCS 5/609.2(h) – EXAMPLE 3




Second New Address: 8828 Antioch Road, Salem, Wisconsin


Distance from Original Address: 20.3 miles CAN MOVE WITHOUT FOLLOWING RELOCATION PROVISIONS


Ch. 5 Page 10

11/2/2015

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750 ILCS 5/609.2(h) – EXAMPLE 4




Second New Address: 102 North Roselle Road, Inverness, Illinois


Distance from Original Address: 23.0 miles CAN MOVE WITHOUT FOLLOWING RELOCATION PROVISIONS

Section 202 of the UCCJEA

Exclusive, continuing jurisdiction (a) Except as otherwise provided in Section 204, a court of this State which

has made a child-custody determination consistent with Section 201 or 203 hasexclusive, continuing jurisdiction over the determination until: (1) a court of this State determines that neither the child, the child’s parents, and any

person acting as a parent do not have a significant connection with this State andthat substantial evidence is no longer available in this State concerning the child’scare, protection, training, and personal relationships; or

(2) a court of this State or a court of another state determines that the child, thechild’s parents and any person acting as a parent do not presently reside in this State.

(b) A court of this State which has made a child-custody determination anddoes not have exclusive, continuing jurisdiction under this Section may modifythat determination only if it has jurisdiction to make an initial determinationunder Section 201.


Ch. 5 Page 11

11/2/2015

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JURISDICTION

This would not prevent a parent from filing a Petition to Declare Illinois an InconvenientForum under 750 ILCS 36/207.

What about the home state argument?

The UCCJEA provides that you need home state AND one of 2 things pursuant to 750 ILCS36/203: (1) the court of the other state determines it no longer has exclusive, continuing

jurisdiction under Section 202 or that a court of this State would be a more convenient forumunder Section 207; OR

(2) a court of this State or a court of the other state determines that the child, the child’sparents, and any person acting as a parent do not presently reside in the other state.

So, Illinois would have to say we do not have exclusive, continuing jurisdiction or declareIllinois an inconvenient forum OR everyone would have to move out of Illinois and Illinois oranother court would have to make that determination.

Remember: No UCCJEA in Massachusetts or Puerto Rico

PARENTAGE ACT

750 ILCS 46/802: “…In determining custody, joint custody, removal, parenting time, parenting time interference, support for a non-minor disabled child, educational expenses for a non-minor child, and related post-judgment issues, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act…”

We do not have the terms custody, joint custody, removal any more

Seems that we should apply our new sections the same to parentage cases despite the discrepancy in terms


Ch. 5 Page 12

11/2/2015

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QUESTIONS

Where is the primary residence when a parenting plan or allocation judgment has not already been entered?

What if the parents have 50/50 time?

Is this something we need to define in our parenting plans and allocation judgments?

Can parents contract for different mileage restrictions?

How is the actual mileage determined?

LANGUAGE TO INCLUDE

Per Jacalyn Birnbaum of Birnbaum, Haddon, Gelfman & Arnoux, LLC at theColumbus Day Seminar, I’ve attached her proposed language to add toparenting plans and allocation judgments.

Problem: it is quite lengthy

Benefit: it covers your butt


Ch. 5 Page 13

1 16 D 24/Notice of Intent to Relocate & Consent

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT LAKE COUNTY, ILLINOIS

JANE DOE, ) ) Petitioner, ) ) And ) Case No. 16 D 24 ) JOHN DOE, ) ) Respondent. )

NOTICE OF INTENT TO RELOCATE

1) I intend to relocate to [address] on [date] , which

is in excess of sixty (60) days from today [or other time period if not practicable and then state

the time period and reason for it not being 60 days].

2) My current address is .

3) This location is ___ miles from my current address.

4) I intend to relocate to the above address permanently [for time frame if not

permanent].

Jane Doe Jane Doe Address 1 Address 2 Phone Number Email Address

CONSENT TO RELOCATE

I, John Doe, under penalties of perjury, do hereby consent to the relocation of my minor

child(ren) as stated above in this Notice of Intent to Relocate.

John Doe


Ch. 5 Page 14

SAMPLE LANGUAGE FOR RELOCATION PROVISIONS TO DOCUMENTS

Article __: Relocation

A. Intention of the Parties

While the parties anticipate that each will continue to reside within reasonable proximity

of each other, in the event that either party seeks to permanently move, the parties acknowledge

the statutory definition of “Relocation” set forth in Section 600(g) of the Age (750 ILCS

5/600(g)) and the applicability of 750 ILCS 5/609.2.

B. Statutory Definition of Relocation

(1) A change of residence from the child’s current primary residence located in the

county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that

is more than 25 miles from the child’s current residence;

(2) A change of residence from the child’s current primary residence located in a

county not listed in paragraph (1) to a new residence within this State that is more than 50 miles

from the child’s current primary residence; or

(3) A change of residence from the child’s current primary residence to a residence

outside the borders of this State that is more than 25 miles from the current primary residence.

C. Compliance with Procedural Requirement

Both parents understand and shall comply with the following terms and provisions of 750

ILCS 5/609.2, specifically:

1. A parent intending a relocation as defined above must provide written notice of

the relocation to the other parent under the parenting plan or allocation judgment. A copy of the

notice shall be filed with the clerk of the circuit court.


Ch. 5 Page 15

2. The parent intending relocation must provide at least 60 days written notice

before relocation unless such notice is impracticable (in which case written notice shall be given

at the earliest date practicable) or unless otherwise ordered by the court. At a minimum, the

written notice must set forth the following:

a) The intended date of the parent’s relocation;

b) The address of the parent’s intended new residence, if known; and,

c) The length of time the relocation will last, if the relocation is not for an indefinite

or permanent period.

The court may consider a parent’s failure to comply with the notice requirements of this

Section without good cause (i) as a factor in determining whether the parent’s relocation is in

good faith; and (ii) as a basis for awarding reasonable attorney’s fees and costs resulting from the

parent’s failure to comply with these provisions.

3. If the non-relocating parent signs the written notice and the relocating parent files

the written notice with the court, relocation shall be allowed without further court action. The

court shall modify the parenting plan or allocation judgment to accommodate a parent’s

relocation as agreed by the parents, as long as the agreed modification is in the child’s best

interests.

4. If the non-relocating parent objects to the relocation, fails to sign the written

notice, or the parents cannot agree on modification of the parenting plan or allocation judgment,

the parent seeking relocation must file a petition seeking permission to relocate.

D. Effect of Relocation 25 miles or less to a new primary residence OUTSIDE of Illinois


Ch. 5 Page 16

The parents understand and acknowledge the following if a parent moves with a child 25

miles or less from the child’s current residence to a new primary residence outside of Illinois,

specifically:

If a parent moves with a child 25 miles or less from the child’s current primary residence to a new primary residence outside Illinois, Illinois continues to be the home state of the child under subsection (c) of Section 202 of the Uniform Child-Custody Jurisdiction and Enforcement Act. Any subsequent move from the new primary residence outside Illinois greater than 25 miles from the child’s original primary residence in Illinois must be in compliance with the provisions of this Section.

E. Parental Agreement

So informed as to all the above referenced terms and provisions regarding relocation,

both within and outside the borders of the State of Illinois, both parents hereby retain their right

to jointly agree, if they are willing and able, to terms of relocation which may vary, in whole or

in part, from the specific boundaries set forth in this Article, so long as the terms to which they

agree serve the best interests of the child.


Ch. 5 Page 17

Lindsay J. Roalfs is an associate attorney at Denis M. Gravel & Associates, P.C. in Gurnee. She was admitted to practice law by the State of Illinois in 2008 and the U.S. District Court for the Northern District of Illinois in 2009. Lindsay serves as a child representative and guardian ad litem. Lindsay is a member of the Illinois Bar Association and the Lake County Bar Association. Lindsay received her B.S. from the University of Illinois in 2004, and her J.D. from Northern Illinois University College of Law in 2008.

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