Custody and Removal cases are the most important cases!

The most complicated and important cases in Illinois divorce and family law are custody and removal cases because they decide the fate of children.

Where will the case be heard?

If you are seeking an initial custody or removal order, regardless of whether you were ever married to the other parent, the general rule is that the County where the child has resided for the last six months will be the County where the case will be heard.

If the child has already been removed from Illinois within the last six months and prior to that removal the child resided in Illinois for at least six consecutive months then the originating County in Illinois will most likely be the County where the case will be decided, if you file your case in time.

If you are seeking to modify an existing court order the originating State will most likely be the State where the case will be decided, but there are exceptions.

What happens in a Custody or Removal case?

In many contested custody and removal cases the parents are required to complete a class to educate you on the impact of your case on your child and to participate in mediation to determine if the parents can reach an agreement.

If you are not able to agree then the Court will seek independent outside assistance to help it evaluate the custody or removal issue. This assistance can come in the form of an attorney for the child, a home study or a custody or removal evaluation by an "expert".

Each parent also has the option of petitioning the Court to hire his or her own "expert" to examine the situation. Such professionals, however, are fiercely independent, as is required by their profession, and they are charged with reporting to the Court what they think is best for the child and not what you want reported. This is not to say that what the expert concludes is necessarily correct or accurate. Different experts may reach different conclusions in the same case.

If the written reports of the experts do not stimulate an agreement then the final steps are taken to gather evidence and the case is set for trial.

WHAT DOES CUSTODY LAW SAY?

Section 750 ILCS 5/602, Best Interest of the Child, of the Illinois Compiled Statutes reads as follows:

"(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

1. the wishes of the child's parent or parents as to his custody;
2. the wishes of the child as to his custodian;
3. the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
4. the child's adjustment to his home, school and community;
5. the mental and physical health of all individuals involved;
6. the physical violence or threat of physical violence by the child's potential custodian, whether directed against another person;
7. the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
8. the willingness and ability of each parent to facilitate and encourage a close relationship between the other parent and the child.

In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.

(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody."

WHAT DOES REMOVAL LAW SAY?

750 ILCS 5/609, Leave to Remove Children, of the Illinois Compiled Statutes reads as follows:

"a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interest of such child or children. The burden of proving that such removal is in the best interests of such child or children. When such removal is permitted, the court may require the party removing such child from Illinois to give reasonable security guaranteeing the return of such children.

b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.

The State of Illinois retains jurisdiction when the minor child is absent from the State."

The Eckert Case

In 1988 the Supreme Court of Illinois addressed the issue of removal in the case of In re the Marriage of Eckert, 119 Ill.2d 316, 518 N.E.2d 1041 (1988).

The Court applied the analysis found in Section 5/609 and held that the best interests standard in removal cases shall be determined by examining the following five (5) subjective measures:

1. "Will removal enhance the quality of life of the child and the custodial parent?
2. Are the motives of the party seeking to remove pure, or is it a ruse to interfere with the parental involvement of the other parent?
3. Are the motives of the party seeking to block removal pure?
4. What impact will removal have on the visitation rights of the non-custodial parent?
5. Can a realistic visitation schedule be created that will ensure the continued contact and maintain the existing involvement of the non-custodial parent with the child?"

Since the Eckert ruling additional cases have refined the Illinois Supreme Court analysis but the corner stones of removal litigation are still today Section 5/609 and the Eckert case."