Children out of Wedlock

Children out of Wedlock

It has become increasingly common in today’s society for parents to give birth to children out of wedlock. Prior to July 10, 2003, the law in Illinois treated married parents differently than parents who had children without the benefit of having been married. Although it might have been easier to break off financial ties between individuals who never married, it is no longer easier for an individual who has never been married to remove her child or children from the State of Illinois.

The Illinois Parentage Act now requires a custodial parent who wishes to remove a child or children from the State of Illinois to first petition the Court to request permission to do so. The factors an Illinois court is required to consider in deciding whether to allow the custodial parent to move to another state are the same factors that a court must consider for a couple going through a divorce, or for couples that have already been divorced. These factors are:

  1. Whether the move outside Illinois will likely improve the quality of life of the children?
  2. What are the motives of the moving parent?
  3. What are the motives of the parent resisting the move out of state?
  4. What has been the past parenting time pattern for the non-custodial parent?
  5. Can a realistic and reasonable parenting time schedule be implemented after the move?

In addition, the Illinois Parentage Act has also added a section that allows the father to apply to the court for an injunction prohibiting the mother from removing the minor child or children from the State of Illinois during any paternity proceeding.

This relatively new law was discussed in detail in a case decided by the Illinois Appellate Court on February 16, 2005. In this recent case, Jill and Vincent had given birth to their daughter, Callie, on February 6, 1998. Jill and Vincent were never married. Five years later on July 5, 2003, Jill married Christopher. Christopher had been unemployed for six months and eventually found a job in Indiana earning $60,000.00 annually. Jill was employed part-time, and this part-time employment occasionally required Jill to leave home. Jill had also become pregnant with her new husband and was going to give birth to her second child, Callie’s half-sibling.

After Vincent became aware that Jill wanted to move to the State of Indiana, Vincent filed an application with the court requesting that Jill be enjoined and prohibited from moving out of state with his daughter, Callie. In deciding whether to grant the injunction, the court was required to consider several factors including, but not limited to, the following:

  1. Vincent’s previous involvement with Callie prior to coming to court;
  2. The likelihood that Vincent was, in fact, the biological father of Callie; and
  3. The impact on Jill’s financial status, and her physical and emotional health from requiring Jill to remain in Illinois with Callie.

In ruling on Vincent’s application for an injunction asking to prohibit Jill from removing Callie from the State of Illinois, several witnesses testified, including a psychologist, Jill, her new husband, Christopher, Callie’s social worker who had been visiting with Callie for behavior problems, and Callie’s biological father, Vincent.

At the trial court level, Vincent’s request to enjoin and prohibit Jill from moving to Indiana with her new husband and the minor child was denied, and Jill was given permission to move; however, the case did not end in the trial court. Vincent filed an appeal, arguing in effect, that it was not in Callie’s best interests to be removed from the State of Illinois and be separated from her biological father. What do you think the Appellate Court decided?

On February 16, 2005, the Illinois Appellate Court reversed the trial court decision and enjoined and prohibited Jill from moving to the State of Indiana with her new husband and the minor child, Callie. If Jill wanted to move to Indiana, she would have to turn Callie over to the biological father. In arriving at this decision, the Illinois Appellate Court held that Vincent had presented sufficient evidence to establish that if Callie were removed from Illinois, his relationship with his biological daughter would be severely tarnished, she would be separated from her extended paternal family, she would see her biological fatherless often, her biological father would not be able to attend school functions, and there was a substantial concern as to how Callie would be cared for by her step-father when the biological mother was out of town on work assignments.

In summary, when having children out of wedlock, the burden for establishing one’s right to move out of state with a minor child or children rests with the custodial parent. From a societal point of view, I agree with the decision because individuals who decide to have children out of wedlock are now required to confront the same hurdles as divorced parents when seeking permission to move out of state with their child or children.

Contact the Law Offices of Michael P. Doman, Ltd. for your divorce attorney needs.

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