Wednesday, June 5, 2013

Reevaluating Child Removal

I just read a great article by Philip M. Stahl entitled, "Emerging Issues in Relocation cases." It was published in the Journal of the American Academy of Matrimonial Lawyers (Vol 25, No. 2) published in Spring of 2013. Stahl discusses the research on children due to  relocation (which is inconclusive, just like everything else in this thorny area of law) and recommends factors courts should consider when weighing these types of cases.

For 25 years, Illinois has used the case of In re Marriage of Eckert 119 Ill.2d 316 (1988) as the benchmark in child removal cases:

"In deciding whether removal is in the child's best interest, a trial court should hear any and all relevant evidence.  A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. There are, however, several factors which may aid a trial court in determining the best interests of the child. The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation.  Similarly, the court should consider the motives of the noncustodial parent in resisting the removal.  It is also in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered.  Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed. "

I never found these so-called "Eckert factors" particularly helpful. The factors are too abstract and don't give enough guidance to litigants or courts. Stahl's article appealed to me because he addresses specific factors to consider, based upon clinical research. Those factors include:

  • The age of the child.
  • The Distance of the move.
  • The child's psychological functioning, including strengths and vulnerabilities.
  • The degree of nonresidential parent involvement
  • The strengths, resources and vulnerabilities of the moving parent
  • Parenting effectiveness of both parents
  • The history, nature and degree of parental conflict
  • The history of any domestic violence
  • Social capital in each location (family members and connections)
  • Each parent's ability to be a responsible gatekeeper and support the child's relationship with the other parent
  • The recency of the Separation and Divorce
I find this list of factors much more helpful than the Eckert factors, which again, provide little guidance to judges trying to determine the best interests of children. I urge everyone to read Phil's well written and thought provoking article. 


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