Short-Distance Moves: "Merely Moving"
updated 8 December 2018
by Wes Cowell
Any move more than 50 miles (25 in some cases) must satisfy certain legal requirements. Shorter moves must satisfy OTHER legal requirements. Even short-distance transfers usually mean a change of school districts -- and that means a new school schedule, new curricula, a new after-school schedule, and new commuting schedules. The Parenting Schedule will have to change . . . but only the court can do that, even if the parents agree. The school change itself usually must be made jointly, by both parents. It all means even short-distance moves usually must go before the court for approval. What can be done when a parent with majority parenting time moves LESS than 25 or 50 miles? Need Advice? Call, leave your info, or schedule a consult .
Background: Most Parenting Plans call for joint decision-making regarding the kids' education. If both parents live in the same school district and one wants to move to a new school district, the parent may move but the children might have to stay behind with the remaining parent. Changing schools is a decision that most Parenting Plans require to be made jointly and, if the parents cannot agree, the kids stay put in the same school (if possible) until a judge can hear the issues and rule on the dispute -- and that might take months. Once the kids start the school year in their same, old school, the judge probably will order that they continue in that school to maintain continuity.
When the Parenting Plan calls for joint decision-making on educational issues, short-distance moves to new school districts as easiest when:
the parents live in separate school districts (meaning a move out of the antecedent school district would result in a new school -- there is no "remaining parent" in the antecedent school district) OR
the kids are switching from elementary to middle- or from middle- to high school -- meaning there is going to be a change in schools, anyway. This second point is somewhat undercut because of the qualitative difference between moving on with one's cohort into the next-level school and moving to a new school with a whole new cohort.
Even if the moving parent has sole decision-making power, a move of a few miles to a new school district may necessitate a change in the parenting schedule. Such moves see kids start new schedules for school and extra-curricular activities; new friends have their own schedules that must be considered, and of course there's the new driving distance and the discussion of which parent will have to do that driving. The parenting schedule may be modified ONLY by the court (out-of-court agreements are not enforceable).
A parenting schedule may be modified as often as necessary to serve the child's best interest -- there is no waiting period or "moratorium." The law says:
Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.
Joint Decision-Making Power: Most folks agree in their Parenting Plans to share "joint decision-making power." If that's the case, a move that would change the child's school district is one of those decisions that must be made jointly. If both parents live in the same school district and one decides to move and tries to unilaterally change the child's school district, the typical response is to 1) enjoin the child's relocation until the court can rule on the matter and 2) seek to change the child's residence (to live with the remaining parent) to allow the child to continue in the same school district. That "joint decision-making" language operates as a kind of de facto residential radius clause -- the "radius" being the school district.
A child's education will certainly be impacted by a change of residence. To have the child switch residences and to greatly change the parenting schedule may produce even greater impact. Family law courts favor stability in the lives of children. Which change will least destabilize the child's life: moving to a new school district with new teachers, classes, neighborhood, friends, extra-curriculars, etc.; or staying with the remaining parent and only visiting the parent with whom the child had previously "resided?" The courts say:
Stability for the child is a major consideration both with an initial award of custody under section 602 of the Act (750 ILCS 5/602 (West 1992)) and with a modification of custody under section 610 of the Act (750 ILCS 5/610 (West 1992)). . . . "Stability" is also used in the sense of continuity, the absence of change. Some child development experts believe:
"that interruption of a continuous relationship with a loving and nurturing parent invariably leaves scars that do not heal completely and may affect the child's future ability to form relationships and become a good parent himself. Such experts are likely to recommend that the child stay with the parent to whom he has the stronger attachment (if they can determine which parent that is), even though the other parent may be better off, more intelligent, more consistent, more patient, and generally more appealing." (S. Goldstein & A. Solnit, Divorce & Your Child 66 (1984).
In re: Marriage of Wycoff, 266 Ill.App.3d 408, 203 Ill.Dec. 338, 639 N.E.2d 897 (4th Dist., 1994).
Later, that same court said:
In Wycoff, we suggested that the legislative presumptions in favor of stability and the present custodian might not apply in those unusual cases where the child spends approximately equal time with each parent. Wycoff, 266 Ill.App.3d at 411, 203 Ill.Dec. 338, 639 N.E.2d at 901. If there are two primary physical custodians, it will not be possible to give one of them a preference. It would be unusual, however, for the presumption not to apply.
In re Marriage of Means, 771 N.E.2d 501, 264 Ill.Dec. 797, 329 Ill. App.3d 392 (Ill. App., 2002).
In In re: Marriage of Findlay, 296 Ill. App. 3d 656, 695 N.E.2d 548 (2d Dist., 1998), the parties agreed to joint custody and gave the mother "residential custody." The mother then wanted to move to Terre Haute, Indiana to attend college. The father objected to the out-of-state removal . . . so she packed up and moved to Marshall, Illinois; a stone's throw from Terre Haute. The father sought an injunction to prevent the in-state relocation, arguing that it was a unilateral decision impacting the kids' schooling, etc. The trial court threw out the father's request for the injunction. He appealed. The appellate court said that a custodial parent may bargain away the right to relocate with the children within Illinois by consenting to such a restriction in a marital settlement agreement. The mother's intended relocation could be one of the "important decisions regarding the children" that she agreed in the MSA could be subject to the court's review.
Sole Decision-Making Power: If your Parenting Plan allocates to one parent sole decision-making power for education, that parent can pack up and move whenever he or she wants as long as he or she stays within the 25- or 50-mile radius proscribed by the law. In re: Marriage of Means, 329 Ill.App.3d 392, 771 N.E.2d 501 (4th Dist., 2002). The parties probably will still have to return to court to return to court, however, to re-work the parenting schedule to account for:
new schedules for school
new schedules for extra-curricular activities;
new friends who will have their own schedules that must be considered,
the new commute time between homes, and
which parent will have to do that driving.
Residential Radius Clauses: Parents will sometimes agree to limit how far away they may relocate. It's known as a "residential radius clause." We used to see these a lot before the new (1/1/2016) relocation law. You can still agree to a radius clause other than the 25- or 50- limits in the law. Typically the parents will eschew language defining a radius in miles and, instead, agree that the kids will stay in the same school district for X years and then the parents will look at new school options.
Residential radius clauses are enforceable. They may not automatically change the "residential parent" from one parent to the other, and they may not automatically institute a new parenting schedule. Such modifications cannot be brought about by automatic operation. They must serve the child's best interests and, therefore, a court must approve of any changes to the child's residence or the parenting schedule. A residential radius clause will, however, force a moving parent to go back to court for permission to move even when the move is only a few miles.
In In re: Marriage of McGillicuddy and Hare, 315 Ill.App. 3d 939, 735 N.E.2d 1028 (3d Dist., 2000) the court held that the mother agreed to terms in the MSA that called for a reconsideration of the "residential parent" if she sought to move outside the county. By agreeing to that language, she bargained away what right she might have had to relocate without court intervention, as under Wycoff and Means, above.