Things change. A husband and wife have children, ultimately separate, and custody and visitation are worked out between the parties or determined by the court. Thereafter, the parties’ circumstances change, leading the custodial parent to relocate, either to another location within Illinois or to another state altogether. Inevitably, this relocation impacts the noncustodial parent’s ability for visitation and involvement in the child’s upbringing.
Under Illinois statutory law, custody determinations must follow the overriding principle of “the best interests of the child;” modifications of an existing custody order are only permitted if a court finds that there has been a change in circumstances and that the change will serve the best interests of the child. What “the best interest of the child” often may appear to be is a confusing, subjective principle. The law, however, sets out a number of nonexclusive factors that a court should consider in determining what is in the best interest of a child, including the parent’s desires, the child’s wishes, the relationship and interaction between the child and each of the parents, the child’s adjustment to a home, school and a community, and the willingness and ability of each parent to foster a close and continuing relationship between the child and the other parent. These are nonexclusive, however, and the court may consider other factors, as well.
In re Marriage of Smith, recently decided by the Illinois Court of Appeals, demonstrates how these principles are practically applied when the custodial parent seeks to relocate to advance his or her career.
After the parents were separated, the mother was unemployed and living in the basement of her parent’s home with the parties’ child. While trained in advertising, the mother took a part-time job at a local home improvement store as a temporary measure and began searching for a job in the advertising field. She applied for 30 different positions in the St. Louis metropolitan area where she and her husband both lived, but she received only one offer. That offer was quite lucrative, and included good health benefits, and room for advancement. The community she wished to live in had high quality, affordable housing and an excellent school system. The position, however, was in Columbus, Ohio. The trial court rejected the mother’s petition to relocate, finding that her move was premature in that she had only looked for a job in the metropolitan area for four months and discounted her desire to work in the advertising field.
The Court of Appeals reversed, holding that a custodial parent is not required to exhaust all employment opportunities in-state before seeking employment out of state, and that the mother’s motives for relocating to Ohio was her wanting a better life with the potential for professional growth and advancement, not to separate the father and child. The court stated that just because the parties have difficulty in agreeing to the mechanics of visitation did not indicate the mother’s bad faith. Any removal will have an effect on a noncustodial parent’s visitation, but this does not mean that relocation should be denied as long as a reasonable and realistic schedule can be created.
As Marriage of Smith illustrates, what is the best interest of the child can be a complex legal determination that depends on the unique facts and circumstances of each case. Anyone involved in a relocation dispute should seek the advice and representation of an experienced Illinois family law attorney.
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