CAN MOM MOVE WITH DAD'S CHILD TO ANOTHER STATE?
Approximately three years ago, this column wrote on the issue of whether, after a divorce, a custodial parent could move out of state with her child or children over the father's objections. On May 22, 2003, the highest court in Illinois issued a decision attempting to clarify this highly emotional issue. In a case which made its way all the way to the Illinois Supreme Court, Sonia had been divorced from Jeff in 1999 after a fourteen year marriage. At the time of the divorce, Sonia had two children ages 13 and 8 years old. The 13 year old went to live with dad, and the 8 year old went to live with mom. Two years after the divorce, in 2001, mom became engaged to her fiancé, who was self employed, and had a successful business 1000 miles away in a small town in Massachusetts. (There was no discussion as to how Sonia met her fiancé) After Sonia became engaged, she wanted to move with the parties' 8 year old son to Massachusetts to be with her fiancé and raise her new family.
Jeff, who had custody of the parties' 13 year old son, had already remarried and was living happily in a small house with his new wife and oldest son. The oldest son and his brother, who were living separate from each other (the oldest brother with dad and the youngest brother with mom) had different friends, different interests, and were not particularly close to one another.
At the trial which first took place in the trial court, Sonia testified that the move to Massachusetts would enhance the general quality of life of both her and the parties' 8 year old son in the following ways: they would live in a bigger house, mom would have a better job earning more money, mom's work hours would be tailored around her son's schooling, her son could be more involved in extracurricular school activities, she would be around to drive him to and from school events, mom would have no more overnight business trips with her new job, mom would pay for all transportation costs to and from their new home in Massachusetts, and mom offered dad up to 10 weeks of summer vacation visitation, as well as additional visits with the minor child throughout the rest of the year. Sonia would also be able to start a new life with her fiancé, just as Jeff had started a new life with his new wife here in Illinois.
Jeff testified in the trial court that everyone in Jeff's family would see his youngest son less often, he would no longer be involved in his younger son's daily life, the younger child was doing fine in school here in Illinois, and the only person who would truly benefit from the move to Massachusetts would be Sonia, the mother; not the minor child.
After a two year court process, the Illinois Supreme Court ultimately decided that Sonia could move to Massachusetts to marry her fiancé and take the parties' youngest son with her on a permanent basis. The highest court has attempted to clarify important questions governing a custodial parent's right to move with a minor child out of state. The Illinois Supreme Court has stated that comparing direct benefits of the mother and indirect benefits of the minor child is not particularly helpful; that the court must focus on the child's best interests, the improvement to the general quality of life of both the custodial parent and the minor child, and the visitation schedule for the minor child once the child moves out of state.
Finally, the Illinois Supreme Court, in attempting to walk a fine line between a mother's right to remarry and move out of state, with the father's desire to stay in close proximity with his child, has stated that, some deference is due the custodial parent who has already determined the best interests of her child and herself are served by remarriage and removal; however, a mother's mere desire to move to another state, without more, is an insufficient basis for removal.
In summary, moving out of state with one's child, thereby creating further separation between that child and the child's other parent is a difficult process, but can be done with proper planning and lots of money to pay the attorneys.