Taking a Child Out of State During and After a Divorce

Taking a Child Out of State During and After a Divorce

By: M. Scott Gordon

Before a court order is in effect in a divorce, both parents in a marriage have equal rights to child custody. When the parents decide to get a divorce, the issue of child custody is very important, and parents may even agree and petition the court for joint custody.  However, some parents may petition the court for sole custody of the child.  Regardless of a court awarding sole vs. joint custody, each parent will be awarded a parenting schedule, unless it would be detrimental to the child.

In some cases, one parent may get an opportunity to move from Illinois (say, for a new job opportunity), and may want to move with the child. Because this would interfere with the other parent’s parenting schedule, the other parent often decides to challenge the move in court.

Permanent Moves

A parent seeking to move to another state with a child must seek court approval for the move, unless there is already an order stating otherwise. As with most matters concerning children, the court will grant or deny permission for a move out of state after considering the best interests of the child. The parent who wants to move has the burden of providing evidence to the court showing the move is in the child’s best interests.

Some of the factors the judge will consider in arriving at a decision on the child’s best interest include:

• The likelihood that the move will enhance the general quality of life for both the custodial parent and the children. 
• The motives of the custodial parent in seeking the move - if the parent is moving to avoid the other parent’s visitation rights. 
• The motives of the noncustodial parent in resisting the removal. 
• How the other parent will be able to exercise visitation rights, and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. 
• How the child will be affected by the move away from the non-custodial parent.

Temporary Stays

For vacations and other trips, almost all Custody Judgments include language allowing each party to temporarily take the children out of state during a parent’s time for vacations, and no new court order is needed.  Nevertheless, the parent must inform the other parent or the other parent’s attorney of the trip, provide contact information for the place the child will be during the out-of-state visit, and also inform the parent of when the child will return. A parent should not try to take a child out of state to file for custody in another state. Illinois courts will still retain jurisdiction over the child no matter what state they are in during this temporary visit.

Contact a Chicago Attorney

If you have a custody order in place and the other parent is trying to permanently remove the child from Illinois, and you are opposed to this move, contact the family law attorneys at M. Scott Gordon & Associates for a consultation in your case.

Skokie, IL office:      847-329-0101

Chicago, IL Office:   312-360-0250

http://www.familylawadvocate.com

How Can A Divorce Affect My Immigration Status?

How Can A Divorce Affect My Immigration Status?

By: M. Scott Gordon

Generally, immigration status does not affect a Divorce. A couple can get Divorced in Chicago or the surrounding areas regardless of either spouse’s immigration status. The Illinois law applicable to divorce requires one of the divorcing spouses to reside or officially live in Illinois before filing for divorce. The law does not mention immigration status, however, the residency requirement could be a potential problem for an illegal immigrant spouse, unless they are somehow able to prove residence in Illinois.

On the other hand, divorce can affect immigration status. The effect of a divorce on immigration status depends initially on whether or not an immigrant has entered the U.S. legally or illegally.

Legal Immigrants

When an immigrant enters the country legally, there are different ways in which he or she can become a citizen or a permanent resident. If a spouse helps with the application for permanent residency, divorce can affect the application depending on how far the application has progressed at the time the couple divorces.

Immigrants who are granted conditional permanent residency through marriage have to apply jointly with their spouses for the conditions to be removed after a certain amount of time. For couples who are divorced, or where one spouse is a victim of domestic violence, a spouse can apply for a waiver to allow him or her to apply for the removal of conditions alone.

Note that if you signed an affidavit of support so your spouse could become a permanent resident or a U.S. citizen, you may still remain liable for her or his support after your divorce. The United States Customs and Immigration Service (USCIS) cautions that divorce does not end the obligation taken on by signing an affidavit of support. This means that after a divorce, a person who signs an affidavit can be compelled to provide support to their ex-spouse based on that affidavit.

Illegal Immigrants

 For a spouse that entered the country illegally, a divorce may indirectly affect immigration status. Sometimes the lack of a legal immigration status can be used as leverage by one spouse to gain an upper hand in divorce proceedings. A spouse may threaten that they will report the other spouse and have them deported unless they give up custody or the right to financial support.  These threats are not in the divorce court, but usually made by the “legal” spouse privately.  If such threats are made, you should inform your attorney.

When a couple is seeking a divorce in Chicago, Cook / Lake or Du Page Counties, they have to exchange financial disclosure information that includes income and debts that each spouse has in their name.  A spouse who is illegally in the country may also lack an official source of income with pay stubs and other means of assessing monthly income. This would make it difficult for a court to determine the appropriate amount to order in child support or spousal support, especially if the illegal immigrant spouse claims to be unemployed.  Note that a parent still has parental rights regardless of immigration status, and therefore would technically be able to apply for visitation and custody.

Contact a Chicago area Attorney

If you are going through a divorce in Chicago, Cook / Lake or Du Page Counties,  and want to better understand how it will affect you, contact the Chicago area divorce attorneys at M. Scott Gordon & Associates, and see how we can help and support you through the divorce proceedings.