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Reconsidering Relocation

By Alex Fawell

Justice is supposed to be blind, not silent. But 750 ILCS 5/609.2, which clearly instructs parents with a majority or equal parenting time on how to seek to relocate with their children, provides no procedure for parents to whom parenting time has not yet been allocated. Yet, upon entry of a Judgment for Dissolution, at least one parent is going to move somewhere that is not the marital residence. If that new residence is more than 25 miles away and that parent wants the children to move with her, this becomes a problem. In light of more restrictive boundaries and an increasingly mobile society, relocation and allocation of parenting time are more likely than ever to be intertwined in a pre-decree context. If “[a] parent who has been allocated a majority of parenting time or either parent who has been allocated equal parenting time may seek to relocate with a child,”1 may a parent not yet allocated parenting time seek to relocate or may she not? If the statute is to “ensure predictable decision-making for the care of children and for the allocation of parenting time”2 and to “acknowledge that the determination of children’s best interests, and the allocation of parenting time and significant decision-making responsibilities, are among the paramount responsibilities of our system of justice,”3 then it should provide an answer.

If a parent who has not yet been allocated parenting time may not seek to relocate with a child, we are left with the absurd conclusion that the parents must first resolve the allocation of parenting time in accordance with 750 ILCS 5/602.7 and then address the relocation. Such a process would not only yield a sham parenting plan, it would also fail to address a situation wherein a parent in a pending divorce would like to relocate with the children but will stay within 25 miles if the relocation is denied. The sensible, judicially economical inference is that a parent may seek to relocate absent an allocation of parenting time, but how? Must she give notice? Must she file a petition? Absent a petition, the court could certainly hear testimony about the relocation and consider the relocation factors4 under the catchall allocation of parenting time factor,5 but should not a statute that seeks to ensure predictable decision-making provide the answer?

Prior to the enactment of 609.2, the Illinois relocation statute was based on the language of the Uniform Marriage and Divorce Act with an amendment that placed the burden of proving that relocation was in the child’s best interests on the party seeking to relocate.6 Like ten other states at the time, Illinois was a “burden on the relocating parent” state.7 Courts determined if that burden had been met based on the Eckert factors:

1. “[The] likelihood for enhancing the general quality of life for both the custodial parent and the children;”
2. “[T]he motives of the custodial parent in seeking to move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation;”
3. “[T]he motives of the noncustodial parent in resisting the removal;”
4. “[T]he visitation rights of the noncustodial parent” in terms of what parenting time has been ordered and what parenting time has actually been exercised; and
5. “[W]hether . . . a realistic and reasonable visitation schedule can be reached if the move is allowed.”8

In a rare occurrence, the Illinois Supreme Court addressed the issue of relocation two more times following Eckert: In re Marriage of Smith and In re Marriage of Collingbourne.9 All that the Smith decision did was acknowledge the existence of indirect benefits – benefits to the parent that trickle down to the child – as an extension of the first Eckert factor.10 The absence of any analysis of indirect benefits led to the issue being revisited in detail by the court in Collingbourne.11 While the Collingbourne court stated that distinguishing direct and indirect benefits “may divert focus from the real issue of whether the child’s general quality of life will be enhanced be the move,”12 it also “emphasize[d] that because there is a nexus between the well-being of the custodial parent and the child who is in this parent’s care,” all benefits must be considered.13 Call it what you will: it was clear after Collingbourne that a best interests analysis included an evaluation of the benefit to the parent seeking relocation. The 2016 amendments to the IMDMA appear to have changed that radically. Most importantly, 609.2 explicitly omits any mention of the custodial parent’s quality of life. Eckert factor one is gone and factors two through five are parsed out into nine statutory factors. 609.2 also adds a “wishes of the child” factor14 and a catchall factor.15

The first case to review a relocation under 609.2 is a Second District parentage case, In re Parentage of P.D., that stands for the proposition that indirect benefits should not be considered by trial courts.16 Addressing the appellant’s argument that the trial court did not give enough weight to the first Eckert factor, the opinion noted that 609.2 omits the first Eckert factor and “references only the best interests of the child,” which the court believes is “the correct approach.”17 The court’s analysis of indirect benefits called Collingbourne’s reading of Eckert into question: “We do not believe that trickle-down benefits are what the Eckert court contemplated when it required courts to consider the likelihood for enhancing the quality of life for the child as well as the custodial parent.”18 Based upon the clear omission of any language regarding benefits to a parent, 609.2, the court went on to “find the reasoning of Eckert and Collingbourne and progeny, to the extent it requires weighing the likelihood that the move will enhance the custodial parent’s quality of life, is unhelpful in evaluating the trial court’s best-interest determination.”19

The appellant’s secondary argument regarding indirect benefits took the position that, although the language regarding the custodial parent’s quality of life is missing from the enumerated factors, the court can still consider undirect benefits under the catchall factor.20 In addressing that argument, the court reiterated “that the cited cases provide negligible assistance.”21 While the appellant put forth a valid argument that she would benefit from a relocation, the court found that such a benefit was outweighed by the detriment that the child would suffer by being moved away from his father. The lack of indirect benefits language coupled with the 25-mile rule makes relocation undeniably more difficult, while our increasingly mobile society makes the issue increasingly more prevalent. As Justice Hutchinson points out in her specially concurring opinion, relocation “is an issue that needs to be discussed, carefully considered, and understood.”22 But that discussion, consideration, and understanding should not be limited to those situations in which there is an existing parenting plan. If the law is truly concerned with the best interests of the child, then it needs to address pre-decree relocation scenarios now more than ever. Failing to address these scenarios leaves a procedural void in an already difficult area of the law.

The American Association of Matrimonial Lawyers Proposed Model Relocation Act contains a section entitled “Application of Factors at Initial Hearing,” which states: “If the issue of relocation is presented at the initial hearing to determining [custody of and visitation with] a child, the court shall apply the factors set forth in this article in making its initial determination.”23 The comment to that section recognizes a “possibility which may occur in a significant number of cases,” namely, that “the issue of a proposed relocation may be tried at the same time the custody litigation is to be finalized. In such instance, neither notice of a proposed relocation nor the statutory scheme to deal with a future proposed relocation are relevant.”24 Simply put, if a case presents a pre-decree relocation issue, the court should consider the relocation factors at the same time as the allocation factors and decide them all at once.

While this type of provision certainly brings clarity, it also brings up two issues. The first is that the proposed language lacks a mechanism for presenting the issue of relocation at the initial hearing. This is easily fixed by allowing any parent desiring to relocate to petition the court for leave to do so regardless of the posture of the case instead of limiting the filing of relocation petitions to cases wherein parenting plans have been entered. The second issue is that the court cannot simultaneously deny a relocation and allocate parenting time because, if the relocation is denied, the parent desiring to relocate must decide whether she still wants to move. That decision must be made prior to parenting time being allocated.

It seems that the simplest solution would be to bifurcate any pre-decree relocation proceeding and address relocation first. In many cases, the answer to the relocation question would likely lead to settlement of the parental allocation issue. If it did not, then the case could proceed to hearing with each parent’s residence being settled instead of hearing everything at once with one parent’s residential status up in the air. While in practice this may well be the common process, the silence of the statue regarding such a procedure hinders its goal of predictable decision-making. A parent in the process of getting divorced who wants to relocate with the children needs to know how to ask the court to do so. The court needs to know when and how to answer the question. If the allocation of parenting time truly is a paramount responsibility of our system of justice, this is one loose end that should not remain untied. 


1. 750 ILCS 5/609.2(b).

2. 750 ILCS 5/102(5).

3. 750 ILCS 5/102(7).

4. 750 ILCS 609.2(g).

5. 750 ILCS 602.7(b)(17) (“any other factor that the court expressly finds to be relevant”).

6. Sally Adams, Avoiding Round Two: The Inadequacy of Current Relocation Laws and a Proposed Solution, 43 FAM. L.Q. 181 (2009).

7. See Id. (grouping all 50 state statutes into 4 broad categories: presumption states, burden states, modification states, and states with no guidelines).

8. In re Marriage of Eckert, 518 N.E.2d 1041, 1045-6 (Ill. 1988).

9. See Gitlin, Gunnar, Illinois 2016 New Relocation Law—Predicting Success in Relocation Decisions Remains Murky Despite Illinois Supreme Court Decisions and Rewrite of Illinois Relocation Law, p. 7 (May 4, 2016), http://gitlinlawfirm.com/wp-content/uploads/2016/06/Article-11a-Illinois-2016-New-Relocation-Law-Predicting-Success-in-Relocation-Decisions.pdf (“On only one other area of Illinois family law is there a trio of Supreme Court Cases – that is, addressing personal and professional goodwill.”).

10. See IRMO Smith, 665 N.E.2d 1209, 1214 (Ill. 1996).

11. IRMO Collingbourne, 791 N.E.2d 532 (Ill. 2003).

12 Id. at 547.

13. Id. at 548.

14. 750 ILCS 5/609.2(g)(8)

15. 750 ILCS 5/609.2(g)(11)

16. No. 2-17-0355, 2017 IL App (2d) 170355 at *4 (2d Dist., Oct. 13, 2017).

17. Id. at *7.

18. Id. (internal quotations omitted).

19. Id.

20. 750 ILCS 6/609.2(g)(11).

21. Id.

22. Id. at *11 (Hutchinson, J., concurring).

23. 15 J. AM. ACAD. MAT. LAW. 1 (1998), §410.

24. Id.


Alex Fawell practices family law and criminal defense at Fawell & Fawell in Wheaton. He graduated from the University of Wisconsin and the John Marshall Law School and now lives in Chicago. Chief among his varied interests are dogs and old guitars.