I am frequently asked if parents are allowed to move to another state or county with their child. This is an important question, and knowing the legal standards in this area can help you plan for your future and possibly prevent costly and time-consuming litigation.
Section 609.2 of the Illinois Marriage and Dissolution of Marriage deals with this issue, which it refers to as "relocation" (previously referred to as removal). This law applies to both married parents and unmarried parents. The law states that any parent who has been allocated the majority of parenting time or equal parenting time may seek to relocate with a child. The parent seeking relocation must first request permission from the other parent in writing at least 60 days in advance of the desired date of relocation. If the other parent approves in writing, then you do not have to go to court to seek permission. However, if the other parent declines to agree, you need permission from the court. Talk to a lawyer about filing a motion for relocation.
But wait, there's more you need to know! The previous law on relocation used to permit a parent with sole custody (as it used to be called) to move anywhere within the state of Illinois without permission from the other parent. As you can imagine, this law was considered unfair by many non-custodial parents, because it allowed custodial parents to move hours away without permission, and the burden was left on the non-custodial parent to file a motion in court and assert his or her rights.
The legislature, considering this to be unfair, changed the definition of relocation to the following:
(1) a change of residence from the child's current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child's current residence, as measured by an Internet mapping service;
(2) a change of residence from the child's current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child's current primary residence, as measured by an Internet mapping service; or
(3) a change of residence from the child's current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence, as measured by an Internet mapping service.
Because of this change in definition, it may be possible for a parent to move from Chicago to Indiana without permission, but not from Chicago to, say, Springfield. Also, the law is written to prevent hopscotching to a far distance by only moving 25 miles away at a time. You can move 25 miles without permission, but if you want to move to another location that is more than 25 miles away from the original address of the child (meaning, the address where the child was living when the last parental responsibilities/custody order was entered), then you need permission.
One last note about relocation cases: they can be very difficult to win. The law states that the court making a decision for relocation must consider number of factors, but there is no fixed test. Every case depends on the circumstances. Courts are, in general, reluctant to allow a parent to move with a child when the other parent is involved and wants to continue to be involved in the child's life. Therefore, it is extremely important that you speak to an attorney if you want to move out of state with your child. Give us a call if you want to talk about your case, the factors that will apply to you, and for more information about legal representation in relocation cases.
If you are owed child support based on a court or administrative order, you are entitled to the amount owed, with interest, and possibly attorneys’ fees as well. This is true even if your children have already reached the age of majority.
First, it’s important to note that there are two ways you can get a child support order: 1) through the court, and 2) through an administrative order. You get a court order from a judge. You get an administrative order from a child support officer who works in the Department of Healthcare and Family Services.
Either type of order can be enforced. Administrative orders can be enforced by the Department of Healthcare and Family Services, and a court order can be enforced through the court with a petition that is called a Petition for Rule to Show Cause and Indirect Civil Contempt.
This type of petition tells the court that an order has not been followed and asks the court to issue a Rule to Show Cause against the non-paying parent. A Rule to Show Cause is an order requiring the non-paying parent to appear in court and show cause (give good reason) why he or she should not be held in contempt of court for failing to pay child support. Once a Rule is issued, then the non-paying parent must appear at a hearing and explain any good cause for non-payment. Typically, this is a difficult standard to meet.
Often, upon receiving notice of a Petition for Rule to Show Cause, a non-paying parent may file a Motion to Modify Child Support, asking to change the amount of support. For that reason, sometimes child support is recalculated in these cases.
At the end of the case, a judgment for arrears (past due support) plus interest is entered and the non-paying spouse will be ordered to pay (often in payments) the past due support. In addition, if a judge finds that the non-paying parent did not have a legitimate reason for failing to pay, the parent who filed the motion can request attorneys’ fees as well.
Collecting unpaid child support involves a detailed process. It is best to consult with an attorney before deciding to begin a court case to enforce a child support order, to make sure that all of your rights are protected in the process.
Cases where parents are arguing over custody (now referred to in Illinois as "parental responsibilities") are difficult on many levels - emotional, mental, physical, spiritual, and financial. The goal for me, as a family law attorney, is always to help my clients achieve a resolution in their custody case that makes them and their children happier and more secure. In order to help keep their cases strong, I advise my clients to avoid certain "bad behavior." Below are five things your should avoid doing if you are in the middle of a custody dispute.
1. Talking bad about the other parent on social media.
As tempting as it may be to rant about your ex on Facebook, don’t do it. Facebook posts are becoming more and more common pieces of evidence in family law court. One post might not destroy your entire case, but it could be considered by a judge when determining several factors, especially your willingness to foster a relationship between your child and the other parent.
2. Texting while angry.
I have seen countless examples of heated text message arguments, and many of them have made their way into the court record. It’s easy to say something regretful when you are angry. Although it cannot always be avoided, do your absolute best not to text the other party while you are angry. If it’s not an emergency, it’s ok to wait to respond until you cool down.
3. Cutting the other parent off.
If you have your child or children in your care, do not make attempts to cut the other parent off from contacting them. This is not an effective way of gaining custody, and it will reflect poorly on you. It’s important to foster the relationship that your child or children have with the other parent, and the court will consider this factor when making a final decision in your parenting case.
4. Withholding information from your lawyer.
It’s best to tell your lawyer the truth about your case, even if it does not reflect you in the best light. Your lawyer can build a strategy, but it could all fall apart if your lawyer is not prepared with full knowledge of your circumstances. If you lie or omit something, the truth may come out, and your lie or omission about it will make the situation worse!
5. Signing anything without legal advice.
You should always speak to a lawyer before signing anything with respect to the care or support of your children! Make sure you understand all of your rights and responsibilities that are contained in any document you sign. Often, once you agree to something in writing, this cannot be easily undone. Maybe you want to save money by not hiring a lawyer, but this mistake could turn out to be more complicated and expensive than just going to see a lawyer in the first place.
This is a common problem that I see often. First, it is important to know whether or not you have a right to parenting time (which used to be called "visitation"). Did you sign a Voluntary Acknowledgement of Paternity at the time the child was born? Do you have a court order declaring you the legal parent of the child? Do you have a court order for parenting time? If not, this is the first step to securing your right to parenting time with your child.
Next, it is important to know your rights under the law. In Illinois, parents have the right to parenting time (formerly called visitation) with their children, unless they are found to be a serious danger to their child’s well-being (in which case parenting time my be supervised or denied altogether). Parents also have the obligation to financially support their children. However, it is important to note that the right to see your child is independent of the obligation to pay child support. This means that even if you are behind on your child support payments, the other parent cannot deny you time with your child.
If you are being denied parenting time, keep a log of all of the incidents with details about what happened. You may also file a police report for visitation interference, if you have a court order. If you need an order for parenting time, or you would like to enforce an existing order, you should make an appointment with an experienced family law attorney right away.
Special Immigrant Juvenile Status, which is also known as SIJS, is an immigration status for unmarried minors under the age of 21, living in the United States, who have been abused, abandoned, or neglected by one or both parents. You can apply for SIJS only if you have an order from a state court which places you in the custody of someone else, and that states that you have been abused, abandoned, or neglected by a parent. The order must also state that it is not in your best interest to return to your home country.
Minors who are granted SIJS can receive a green card (with some exceptions). However, they can never file a petition for a green card on behalf of their parents in the future. The SIJS program provides minor children, who are in the custody of someone else, with a path to residency and citizenship.
In order to apply for SIJS, first you must obtain the necessary state court order, if you do not already have one. This means that an adult who is caring for the child must file a petition for custody (if the adult is a parent of the minor) or guardianship (if the adult is not a parent of the minor), in the appropriate court. It is recommended that you hire a family law attorney for this part of the process, and it is very important that your attorney understand SIJS procedures.
If that petition is successful, and the state court order contains the necessary language, then the minor child is now eligible to apply for SIJS through the USCIS. It is recommended that you hire an immigration attorney for this part of the process. It usually takes between six to twelve months to process the application.
One tricky area of the law here is that you can only get the custody or guardianship order from the state court if the minor child is under 18 years of age. This is because the state courts can only grant these orders for minors younger than 18, except in special cases. So far there have not been clear examples of minors between the ages of 18-21 who have been able to get the state court orders, so it is best to act quickly while the minor child is still younger than 18 years of age.
In summary, SIJS can provide minor children who have been abused, abandoned or neglected by one or both parents with protection from deportation and a green card. It is a process that requires two separate cases, one at the state court level and later one at the federal level (immigration). It is highly recommended that you hire lawyers who are knowledgeable about SIJS, and it may be in your best interest to consider a law firm that handles both types of cases.
Maintenance, formerly called alimony in Illinois, is the financial support that one ex-spouse pays to another ex-spouse during and/or after they get a divorce. Maintenance exists to make sure that both parties can support themselves after a divorce. Often times, one spouse will be the “breadwinner” in the family, and the other spouse has given up work opportunities and other advancements to care for the family. The maintenance law seeks to make sure that the other spouse does not end up destitute when the marriage ends.
Unlike child support, maintenance is not automatically awarded in every divorce case. The court will consider many factors to determine whether or not maintenance is appropriate. The court will look at the parties’ standard of living during the marriage, the work history and level of education of each party, and each party’s income to decide whether maintenance should be awarded.
If a court decides that maintenance is appropriate, then there is a formula in the Illinois law that is used to calculate the amount of maintenance and the duration (how long the maintenance will be paid). The amounts are based on both parties’ incomes, and the duration is based on the length of the marriage.
Here are some common questions about maintenance that many people ask me:
Q. Can I get maintenance if I am not married but I have been with my partner for a long time?
A. No. Unmarried couples who separate cannot ask for maintenance in Illinois, even if they have been together a long time. Illinois does not recognize “common law” marriages.
Q. Is maintenance only for wives who stay at home to raise children?
A. No. Maintenance can be received by either a husband or a wife. A spouse can receive maintenance even if he or she is working. It all depends on the circumstances of your case.
Q. Do I have to wait until a divorce is finalized to get maintenance?
A. No. The law allows the parties in a divorce to request temporary maintenance while the case is still being decided.