Can One Parent Move Out With The Children Before Divorce Is Filed?
If married parents in Schaumburg are still living together and there is no court order about parenting time or responsibilities, things are different than when a divorce or parenting case has already started. There may not be any order yet about where the children should live or what the parenting schedule should be.
This does not mean one parent should just take the children, stop all communication, or keep the other parent from seeing them. Illinois courts always focus on what is best for the children when deciding parenting time and important decisions.
Under 750 ILCS 5/602.7, Illinois courts allocate parenting time according to the child’s best interests. Among the factors the court may consider are how much time each parent performed caretaking functions during the 24 months before the case was filed, the child’s adjustment to home, school, and community, the distance between the parents’ homes, each parent’s ability to cooperate, and each parent’s willingness to encourage a relationship between the child and the other parent.
Because of this, if one parent takes the children and tries to keep the other parent out of their lives, it can become important in later divorce cases.
Moving Out Does Not Automatically Determine Who Gets The Children
I often see parents worry that whoever leaves with the children first will automatically become the primary parent. Illinois law does not work that way.
Many parents worry that the parent who leaves with the children first will automatically become the main parent. Illinois law does not work this way. Under 750 ILCS 5/602.7, the court looks at the history of each parent’s involvement, the child’s existing relationships, school and community ties, transportation concerns, schedules, parental cooperation, and other relevant circumstances.
Still, what happens before filing for divorce should not be ignored. For example, if one parent moves out with the children and this situation continues for months, the children’s new routine, school, living situation, and each parent’s role in caring for them can all become evidence in court.
This is one reason I generally advise against allowing an unfavorable parenting arrangement to continue indefinitely without obtaining legal advice.
Illinois Courts Separate Parenting Time From Major Decisions
In Illinois, parenting time and making important decisions for the children are related, but they are handled as separate issues.
Under 750 ILCS 5/602.5, the court allocates responsibility for significant decisions according to the child’s best interests. These decisions include important matters involving education, medical and psychological care, and extracurricular activities. The court may give responsibility to one parent or divide responsibilities between both parents.
A spouse therefore does not necessarily gain authority over schooling, medical treatment, or other major matters simply by taking the children to another residence.
When determining decision-making responsibility, the court may consider the parents’ prior participation in important decisions, their ability to cooperate, the child’s needs, the distance between the parents’ homes, and each parent’s willingness to support the child’s relationship with the other parent.
Filing For Divorce Can Allow The Court To Enter Temporary Parenting Orders
If the parents cannot agree about where the children should stay while a divorce is pending, temporary court orders can provide structure.
Under 750 ILCS 5/603.5, an Illinois court may temporarily allocate parental responsibilities before entering the final allocation judgment. The temporary arrangement must be based on the child’s best interests and the standards used for parenting time and significant decision-making responsibilities. Illinois law also permits a court to authorize a child’s temporary relocation before the final allocation judgment when relocation is in the child’s best interests.
Temporary orders can establish where the children spend their time, exchanges between parents, temporary decision-making arrangements, and other conditions necessary while the divorce proceeds.
A temporary order does not automatically dictate the final result. Its purpose is to establish workable conditions while the case remains pending.
A Court Can Restrict Removal Of A Child From Its Jurisdiction
Illinois law also gives courts tools to prevent a parent from taking a child away for an extended period after proceedings begin.
Under 750 ILCS 5/501, a party in a divorce proceeding may seek temporary injunctive relief. The statute specifically permits an order preventing a party from removing a child from the court’s jurisdiction for more than 14 days. The court may also enter other appropriate injunctive relief based on the circumstances.
If I believe a parent is preparing to move the children far away, leave Illinois, hide their location, or interfere substantially with the other parent’s relationship with them, I examine whether immediate temporary relief should be requested.
Waiting until after a major move occurs may make the situation considerably more difficult.
Moving To Another State Can Create Jurisdiction Issues
An interstate move raises additional legal concerns under the Uniform Child-Custody Jurisdiction and Enforcement Act, or UCCJEA.
Under 750 ILCS 36/201, Illinois generally has jurisdiction to make an initial child-custody determination when Illinois is the child’s home state when the proceeding begins, or when Illinois was the child’s home state within the six months before the proceeding began and a parent remains in Illinois.
The UCCJEA defines a child’s home state generally as the state where the child lived with a parent or person acting as a parent for at least six consecutive months immediately before commencement of the custody proceeding.
Consequently, a parent should not assume that crossing the Illinois border immediately transfers the parenting dispute to another state. Interstate jurisdiction can depend heavily on where the children lived before the move, how long they have been gone, whether one parent remains in Illinois, and whether a parenting proceeding has already been filed.
Cutting Off The Other Parent Can Hurt A Parenting Case
One of the factors Illinois courts consider is each parent’s willingness and ability to encourage a close and continuing relationship between the child and the other parent.
That principle appears in both the decision-making factors under 750 ILCS 5/602.5 and the best-interest analysis applicable to parenting time under 750 ILCS 5/602.7.
A legitimate reason for leaving the marital residence may exist. Separation can sometimes reduce conflict and create a healthier environment for the children. Safety concerns may also require immediate action.
There is an important difference, however, between moving to a separate residence and deliberately preventing reasonable contact between the children and the other parent without a legitimate safety concern. Conduct designed to interfere with the parent-child relationship can become important evidence during the divorce.
Illinois Divorce Frequently Asked Questions
Can My Spouse Legally Take Our Children And Leave The Marital Home Before Filing For Divorce?
There may be no existing parenting order restricting where the children stay when neither spouse has filed a case. That does not mean a parent has unlimited authority to relocate the children or prevent the other parent from having contact with them. Once a case is filed, the court can establish temporary parenting arrangements and ultimately allocate parenting time according to the children’s best interests under 750 ILCS 5/602.7. I would evaluate the distance of the move, the reason for leaving, whether contact is being denied, the children’s established routine, and whether immediate court involvement is appropriate.
Does My Spouse Get Custody Because The Children Left With Them?
No. Leaving the marital home first does not automatically determine the final parenting arrangement. Illinois courts evaluate statutory best-interest factors, including each parent’s history of caring for the children, the children’s relationships and needs, their adjustment to home and school, the distance between the parents, and the willingness of each parent to support the children’s relationship with the other parent. The court examines the overall circumstances rather than awarding parenting rights simply because one spouse established a new residence first.
Can My Spouse Change The Children’s School After Moving Out?
School decisions can become a significant issue because education is one of the major decision-making responsibilities addressed by 750 ILCS 5/602.5. Once a court allocates significant decision-making responsibility, the allocation judgment determines which parent has authority over educational decisions or whether that authority is shared. If no order exists yet, a sudden school change can still become relevant in the later proceeding, particularly when it disrupts the children’s established routine or affects the other parent’s relationship with them.
Can My Spouse Move From Schaumburg To Another Part Of Illinois With The Children?
The distance matters. Schaumburg is primarily located in Cook County, and Illinois defines relocation from a child’s primary residence in Cook County as an in-state move of more than 25 miles under the statutory measurement method. 750 ILCS 5/600(g) establishes that distance threshold. Once the relocation provisions applicable to an allocated parenting arrangement are involved, 750 ILCS 5/609.2 establishes notice requirements and procedures for obtaining consent or court approval. A shorter move can still affect parenting schedules, transportation, schooling, and the child’s best interests even if it does not meet the statutory definition of relocation.
Speak With A Schaumburg Family Law Lawyer About Moving With Children Before Divorce
When one spouse leaves with the children before divorce papers are filed, decisions made during the first few days or weeks can influence parenting disputes for months or years. I can evaluate whether a move may affect parenting time, significant decision-making responsibilities, relocation rights, temporary court orders, school decisions, interstate jurisdiction, or visitation issues.
At the Law Office of Fedor Kozlov, I represent clients on either side of family law disputes involving divorce proceedings, child custody and allocation of parental responsibilities, parenting time and visitation rights, relocation disputes, paternity, and other Illinois family law matters. Whether you are concerned that your spouse has taken the children or you need advice about moving out with your children during a separation, I can evaluate the circumstances and explain the legal options available under Illinois law. Contact our Schaumburg divorce attorney at the Law Office of Fedor Kozlov by calling (847) 241-1299 to receive a consultation.
