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What It Takes To Win a Relocation Case

by Wes Cowell, updated 15 November 2016 -- suggest a correction.

You want to move more than 25 or 50 miles away, or more than 25 miles out-of-state.  You've followed the relocation rules and the other parent objects to your proposed relocation.  What now?  Need advice? Callleave your info, or schedule a consult.


Background:  All issues involving children are resolved by the court using "the best interest of the child" standard.  Generally, relocations are disfavored because they tend to disrupt the connection between the child and the remaining parent.  In re: Marriage of Davis, 229 Ill.App.3d 653, 171 Ill.Dec. 590, 594 N.E.2d 734 (4th Dist.), appeal denied, 146 Ill.2d 625, 176 Ill.Dec.795, 602 N.E.2d 449 (1992).  Where relocation can be shown to benefit the child – notwithstanding the change in contact with the remaining parent – relocation should be permitted.


The Eckert Factors:  Relocation cases used to be called "removal" cases.  The name changed 1 January 2016 when Illinois' Marriage and Dissolution of Marriage Act was overhauled.  In 1988, the Illinois Supreme Court ruled on one of these removal cases (IRMO Eckert, 119 Ill.2d 316, 116 Ill.Dec. 220, 518 N.E.2d 1041 (1988)) and laid down four factors that courts should consider.  The "Eckart factors" were not statutory ("best interest" was the only standard for removal in the pre-2016 statute), they were merely suggestions that court's should consider; they were not exclusive, and they did not establish a test in which the parent seeking removal had to meet every prong.


If you're doing research, you're going to run across the "Eckert factors" in every appellate case between 1988 and 2016.  The Eckert factors are:

  1. the likelihood that the move will enhance the general quality of life for both the custodial parent and the child(ren);

  2. the "moving" parent's motives; that is, whether the removal is merely a ruse intended to defeat or frustrate visitation;

  3. the "staying" parent's motives in resisting the removal;

  4. that is in the best interest of the child to have a healthy and close relationship with both parents; and

  5. whether a realistic and reasonable visitation schedule can be reached if the move is allowed.


You can ignore the Eckert factors, today, because the 2016 statute spelled out specific factors that the court MUST consider.  


Rule 137 Warning:  Now that we have statutory factors, litigants must consider those factors when crafting their pleadings and proving their claims.  Kristi Hanna dodged a bullet when she prosecuted her pre-2016 removal case, pro se.  All of her "evidence" was tossed on hearsay violations and what she alleged to be an offered job promotion turned out to be merely a job posting that was being held open.  Removal was denied.  Stephen Hanna asked for Rule 137 sanctions arguing that Kristi's allegations were "blatantly false or a clear misrepresentation."  The trial court found that Kristi's removal petition was not well grounded in fact and her evidence missed "the statutory factors" by a mile.  The court awarded Stephen $28,000 in attorney's fees as a sanction.  Kristi appealed.


The appellate court noted that, at the time of Kristi's filing, there were no "statutory factors" and said the only standard was "the best interest of the child" as fleshed out by the Eckert factors.  On that thin thread, Kristi dodged a $28,000 attorney's fee bullet.   In re:  Marriage of Hanna, 2016 IL App (1st) 153499-U.


Today, we DO have statutory factors.  If Kristi filed her case today, she'd be out $28,000.  Attorneys and litigants must carefully and critically examine their facts and allegations when laying out a relocation strategy.


The Statutory Factors:  When contested, the court must consider many factors in deciding whether to allow a requested relocation.  The factors set out in the statue are:

  1. the circumstances and reasons for the relocation;

  2. the reasoning underlying the non-relocating parent's objection; 

  3. the "history and quality" of each parent's relationship with the child; 

  4. school comparisons; 

  5. where extended family lives (near the current residence and the new, proposed location); 

  6. the anticipated impact of the relocation on the child; 

  7. whether the parental responsibilities can be reallocated reasonably (this really is all about the child's travel for "parenting time" -- "decision-making" is almost never a problem because parents can live halfway around the world from each other and, thanks to e-mail, text messaging, video conferencing, and phone calls, they can still co-parent);

  8. the child's wishes;

  9. whether a reasonable parenting schedule can be implemented given the distance between and resources of the parents; 

  10. how to minimize the impact on the child's relationship with the non-relocating parent; and 

  11. anything else that impacts the child's best interest.


Each factor is considered, below:


1.  Circumstances and Reasons for Relocating; 750 ILCS 5/609.2(g)(1):  The Granddaddy of all removal / relocation cases is the Illinois Supreme Court case of IRMO Eckert, 119 Ill.2d 316, 116 Ill.Dec. 220, 518 N.E.2d 1041 (1988).  Eckert said that removal should be allowed when it would serve the best interests of the child.  After Eckert, there was a split in Illinois appellate authority about whether the benefit to the child had to be a DIRECT benefit, or if an indirect benefit  was enough ("a-happy-parent-makes-a-happy-child").  The outcome of a case depended, partly, on where the case was filed.  The split of authority was resolved fifteen years later in the Illinois Supreme Court case of In re: Marriage of Collingbourne, 204 Ill.2d 498, 791 N.E.2d 532 (2003).  The Supremes agreed with the "happy-parent-begets-happy-children" analysis.  That means a parent may justify a long-distance relocation by a desire to be near far-away family, to be with a new spouse, etc.


New Spouse Far Away: Illinois law used to frown on removal cases predicated on the need to be near a new spouse in another state.  As noted above, however, Collingbourne reversed that trend and such arguments now carry much more weight in a court's determination. Ultimately, the service of the child's best interest is the final determining factor and so the child's relationship with the new stepparent, the increase in standard of living brought by the new relationship and possible employment, and the extent to which the new relationship / locale will better enable the relocating biological parent to enhance the child's welfare will all come into play in any determination.  Courts often look to the enhanced financial security that the removing parent will attain from the marriage and the extent to which the removing parent will be freed from a prior workload / time commitments as a result of the marriage. In Ford v. Marteness, 368 Ill.App.3d 172, 306 Ill.Dec. 262, 857 N.E.2d 355 (4th Dist., 2006) the never-married mother (Ford) was a bartender in Illinois earning $300 per week.  She wanted to move to Greeley, Colorado to marry a pressman making $45 - $50K.  The father of child (Marteness) was relatively un-involved in child’s life -- he paid support and enjoyed only alternate weekend visitation.  The fiance in Colorado had a close relationship with the child.  Removal allowed.


New Job Far Away: When deciding to allow a particular request to relocate children, courts must consider whether the custodial parent has a better job opportunity and the extent to which the increased earnings will provide for a better lifestyle for the child.  In re Marriage of Taylor, , 202 Ill.App.3d 740, 147 Ill.Dec. 810, 559 N.E.2d 1150 (3rd Dist., 1990) 


2.  The Reasoning Underlying the Objection, 750 ILCS 5/609.2(g)(2):  This one is simple, it's always the same, and it doesn't have to be fancy:  the non-moving parent loves the child, wants to be involved in the child's life on a regular and "hands-on" basis, and a long-distance relocation will defeat that arrangement all to the detriment of the child's best interests.


3.  The "history and quality" of Each Parent's Relationship With the Child; 750 ILCS 5/609.2(g)(3):   This is really looking at whether the non-relocating parent assiduously exercised parenting time and parenting responsibilities OR whether the relocating parent thwarted the non-moving parent's rights under the parenting schedule.


4.   Neighborhood and School Comparisons; 750 ILCS 5/609.2(g)(4): Any removal case necessarily involves neighborhood and school comparisons. It's probably the least important aspect of the removal case, but important, nonetheless. When you get to this point, be sure to work with an experienced attorney to ensure that the evidence you develop may be used in the court case.  Most information prepared by non-lawyers ends up being inadmissible when the case goes to trial because, lacking knowledge and training, non-lawyers overlook the technical requirements needed to satisfy the court's rules of evidence.  Whether you're seeking to remove a child from Illinois, or opposing such an attempt, always work with an experienced, skilled attorney from the outset to ensure the best possible success for your case.  Call me.


5.  Where Extended Family Lives; 750 ILCS 5/609.2(g)(5):  This is a little different than the "I've-remarried-and-my-new-spouse-lives-far-away" argument.  What the law is really looking to, here, is the connection the kids have with relatives and the extent to which those relatives can provide a support network to help in the children's rearing.


6.  The anticipated impact of the relocation on the child; 750 ILCS 5/609.2(g)(6):  This one is different in every case.  Work with a lawyer.  Call me.


7. Whether the parental responsibilities can be reallocated reasonably; 750 ILCS 5/609.2(g)(7):  This really is all about the child's travel for "parenting time" -- "decision-making" is almost never a problem because parents can live halfway around the world from each other and, thanks to e-mail, text messaging, video conferencing, and phone calls, they can still co-parent)


8.  The child's wishes; 750 ILCS 5/609.2(g)(8):  The court will consider the child's age and reasoning behind the desire to stay or relocate.  The court is always alert to indications a child has been coached or coerced -- the "my-mom-said-I-could-have-a-puppy-if-we-moved" problem.


9:  Whether a reasonable parenting schedule can be implemented given the distance between and resources of the parents; 750 ILCS 5/609.2(g)(9):


Travel Distance is not a problem – Duration and Difficulty Are:  Sometimes the proposed visitation itineraries can fatally undercut an otherwise good relocation plan.  Consider the differences between a case where a child has both parents living near major airports (say,ORD and LAX)) and a case where the parents live a hundred miles from the nearest, smaller, regional airport (say, Springfield, IL and Durango, CO).  The first child will be able to commute between homes in a few hours, flying thousands of miles on a non-stop flight.  The other child, however, will face at least one layover, have to make a connection (probably changing terminals) and a long drive at each end of the trip – for each trip, both ways!


Such complications in transportation have undone more than one proposed removal.  If you’re thinking about removing your kids to another state – or thwarting an anticipated removal, look closely at all of the hurdles an unaccompanied minor will have to negotiate during the commutes.  Those hurdles will play a significant factor in any trial.  Likewise, where the parents cannot afford airfare and driving is the intended mode of travel, long distance visitation may be too impracticable to be considered and, for that reason, most removal petitions accompanied by such transportation plans are denied.


10.  How to minimize the impact on the child's relationship with the non-relocating parent; 750 ILCS 5/609.2(g)(10):   Lawyers typically bake into proposals requirements that the non-moving parent be given regular video and phone conferencing time with the child.  These arrangements can be problematic.  Work with a lawyer.  Call me.


11.  Anything else that impacts the child's best interest; 750 ILCS 5/609.2(g)(11):  Anything else means ANYTHING.


When Removal Is Allowed:  Illinois courts almost always alter the parents’ respective rights and responsibilities regarding visitation and other types of contact.  In most cases, these are the most important issues – and they are also the issues that are most neglected by parents and attorneys alike.  If you are, or your former spouse is, thinking of removing a child from Illinois, do yourself (and the child) a favor by working with a team of attorneys who can accomplish your goal (whether seeking or objecting to the removal) and, if removal is allowed, establishing rights and responsibilities that will ensure things flow smoothly for everyone – especially the child -- after the removal.


Settlement Agreement -- Future Jurisdiction Uncertain:  If a parent moves to a new, out-of-state  residence less than 25 miles from the prior residence, Illinois will continue to hold jurisdiction of the case the case even though one parent and the child are "residents" of a different state.   Illinois' UCCJEA says:  

c) A court of this State shall continue to exercise exclusive jurisdiction and be considered the home state of a child if a parent moves with a child under subsection (h) of Section 609.2 of the Illinois Marriage and Dissolution of Marriage Act. 

750 ILCS 36/202(c).

If the out-of-state relocation is more than 25 miles, however, jurisdiciton of the case transfers to the child's new "home state." new state.


 When the parents agree to permit one of them to remove a child to another state, they usually also agree that the Illinois courts will resolve any future disputes.  Lawyers and judges call such language a “forum selection clause.”  This makes sense on one hand because the Illinois judge has heard all of the evidence about the relocation and probably has a pretty good familiarity with the parents, the children, and the issues impacting the family.  On the other hand, information about the old case may not be very relevant in the future.  Most of the pertinent new evidence (school teachers, doctors, therapists, neighbors, etc.) will be in the new state.   


So, if the parents agreed to a removal and agreed about keeping future disputes in Illinois, but time has passed and the new circumstances suggest that the new state’s court would be a better forum, which state should hear the case?  Should the parent’s agreement control – is it true that “a deal is a deal?”  Or should the removing parent be permitted to say “I know I agreed to have future disputes resolved in Illinois, but now I’ve changed my mind, I want to renege on my deal, and I want the new dispute heard before a new judge in the new state?”


The answer is:  “it depends.” It depends on the county court in which the agreement was approved by the judge.  When looking at such agreements, the courts of some Illinois counties say “a deal is a deal and Illinois retains jurisdiction.”  In re:  Marriage of Hilliard, 178 Ill.App.3d 620 127 Ill.Dec. 671, 533 N.E.2d 543 (3d Dist., 1989).   Note, however, that the UCCJA was “A forum selection clause is prima facie valid and should be enforced unless the opposing party shows that enforcement of the clause would be unreasonable under the circumstances and would essentially deprive him of his day in court.”


Other county courts, however, say that a forum selection clause is “just one of several factors to be considered.  If a visitation or custody dispute arises after the removal, the Illinois judge will look at all of the circumstances, including the forum selection agreement, and decide which state would provide the better forum.”  In Re:  Marriage of Romans, 366 Ill.App.3d 180, 303 Ill.Dec. 311, 851 N.E.2d 209 (1st Dist., 2006).  It seems crazy.  Section 207 of the UCCJEA says that the court should consider “all relevant factors,” including “(5) any agreement of the parties as to which state should assume jurisdiction.”  The Romans ruling undercut the parties agreement.  As the Hilliard court noted, the parties entered into the forum selection clause language freely and voluntarily.  They contemplated the inconvenience to the removing parent of returning to Illinois to litigate – and the removing party should not later be permitted to argue that inconvenience is a reason for litigating in the new state.  Such a conclusion eviscerates the agreement.


Which case applies to you?  It all depends on the county that approved your removal agreement.  That’s right; the Illinois law is applied differently in different counties.  The county where your removal case was approved will determine whether a forum selection clause will carry its intended effect.


There is a way around this problem.  Work with a good lawyer who can help you avoid the pitfalls (or insert a loophole or trapdoor for you).  Call our office today to speak with one of our knowledgeable and skilled family law attorneys.



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