Legal Issues of Relocating with a Child

relocating

Halle Berry: Saying “au revoir” to California and “bon jour” to Paris

One of the least understood issues in family law are the legal rights available to a sole or joint custodial parent to move out-of-state with his or her minor child. The issue has been highlighted by the drama occurring in California involving Halle Berry and her daughter with Gabriel Aubry, named Nahla.

It all boils down to this: the law depends on where you live. Every parent should be aware that the law on this issue, known in legal terms as “removal,” varies markedly from state to state. Some states care practically not at all while others, like Illinois, absolutely prohibit an out-of-state move by even a sole custodial parent without either an agreement with the other parent or judicial permission only granted after a full evidentiary hearing.

Best Interests of the Child

For those living in Illinois and considering a move elsewhere, the touchstone for whether you will be allowed to move is “the best interests of your child or children.” The court would examine the alleged benefits to the child and to the moving parent in terms of economics (such as a transfer to a higher paid position or marriage to a good provider for an underemployed or unemployed spouse), nearness to an extended family (for a support system and child care), health needs of the children particularly (such as climates better for asthma) or extracurricular needs of the children (warm climates for budding baseball stars and swimmers; cold ones for champion skiers or snowboarders), and the list goes on. Of course the court also must weigh the detriment in being geographically “removed” from the other parent and the child’s previous life patterns.

The courts in Illinois want to understand the motives for an out-of-state move and examine their authenticity. A wise judge friend of mine used to say that for everything in life, “There is a good reason, and then the real reason.” If the real reason for the move is to get away from the other parent, then it is unlikely the court will grant the move. If the motive is actually genuine and defensible, and makes economic sense, the court will find it easier to approve.

Where in the World are You Moving?

Of significant consequence, of course, is where you are proposing to move and for how long. Halle Berry’s proposed move to France, if presented to the courts in Illinois, would pose some real challenges. When a child will be living in a different time zone and culture from one of their parents and the travel for visitation would be so costly, there would have to be a compelling basis to allow it. Ms. Berry’s reasons include her engagement to a French film star and increased safety from the paparazzi. We will all have to “stay tuned” for the court’s decision.

It is often shocking to a divorced parent to find out that so much law is involved in moving out of our state with a child. Two tips to avoid a prolonged courtroom drama:

(1) Go step-by-step through the economic and situational analysis described here, and examine your own motives before making the choice to move.
(2) If you find you fit many if not the majority of the criteria for a “best interests” move, consider reviewing the facts with an attorney to see if/how you could settle the issue and/or prepare your case.

The court system is there to litigate the issue, and caring judges will assess the situation as well as anyone outside your family can do. However, you and the child’s other parent are the best judges of all if you can work out a settlement as to your child’s best interests…in Illinois or anywhere.

 

Photo credit: ep_jhu via photo pin cc

Gemma_Allen

About Gemma Allen

Gemma Allen is a partner in Ladden & Allen, Chartered, and has practiced family law for most of her career. Ms. Allen has written more than 50 articles and lectured on topics that include divorce, child support, maintenance, mediation, cohabitation, women and money, and reconciliation. She co-authored The New Love Deal: Everything You Must Know Before Marrying, Moving In, or Moving On! and helps you navigate modern relationships in “Relationship Gems.”