Does Distance Matter When Removing A Child?


Removal is an interesting topic because there is occasionally a dissonance between how the court views the subject and how the parents view the subject. The court will typically consider five factors when discussing removal: (1) the likelihood that the move would enhance the general quality of life for the residential parent and child; (2) the residential parent’s motives for seeking the removal; (3) the non-residential parent’s motives for resisting the move; (4) the non-residential parent’s visitation rights; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed.”

For a court, removal is largely about removing a child from the court’s jurisdiction. This happens any time the child leaves the court’s home state. If the removal is permanent, the court may eventually be deprived of jurisdiction over the child. To some extent, this means that the judge’s knowledge of the parties and the parenting issues in the case will be lost. Obviously the court record can follow the child, judgments can be enrolled in foreign jurisdictions, etc., etc., but there is a real loss of knowledge. Coupled with this loss is the fact that the judge is losing authority over a case that he or she had ruled on. The judge cannot employ that knowledge he or she has gained over the course of the case and a new judge will have to issue rulings with much less information. [This is a topic unto itself and please note there are a lot of caveats here].

Parents are a bit less concerned about jurisdiction. They are much more concerned with seeing their child and making sure that the work the parties have done in family law court is not lost. A non-residential parent is not thinking about whatever judge may be assigned to the case, he or she is thinking about travel, how to divide the cost of plane tickets, and how to spend time with his or her child in a foreign state. Those are real concerns.

How much does the distance between the parents matter in removal cases? You would think quite a bit, since it would frustrate any realistic parenting schedule. However, the answer is a bit murkier. After-all, that is just one factor.

This was exactly the problem in Bannister v. Partridge, 4-12-0916 (4th 2013). In Bannister, the residential parent filed a petition for removal to go to Kentucky and live with the residential parent’s husband. The court granted the petition. When the residential parent then wanted to move with her husband and the parties’ child to Maine, the trial court denied her second request for removal. The court found that the distance from Illinois to Maine was significantly greater than the distance from Illinois to Kentucky. Accordingly, it would be incredibly difficult for the non-residential parent to exercise parenting time. In overturning the trial court, the appellate court agreed that the greater distance was problematic, but not as problematic as denying the removal petition. If denied, the residential parent would have to move back to Illinois (her Kentucky residence was no longer an option) and look for work, away from her husband. The appellate court found that this posed a greater harm to the child than the diminishment of the non-residential parent’s parenting time.

Bannister is a messy case and I don’t want to read into it too much, but its holding is worth noting.

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