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Kimberly R. v. George S. – Key Issues to Consider in Removal Petitions

Divorced parents of minor children who wish to move out of state with their child might be surprised to learn that obtaining court approval for the move can be difficult and requires careful preparation and planning. An examination of one recent Illinois petition for removal case, and its outcome, can provide examples of the issues that parents may encounter.

In this case, the mother, Kimberly R., filed a petition for removal which was denied by the Cook County Circuit Court, a decision that was later affirmed by the First District Appellate Court. As we’ll see, this case highlights some important evidentiary issues that arise in removal cases, as well as showing how litigants like Kimberly can undermine their own chances of successfully litigating a removal Petition.

The Basics of Kimberly’s Removal Request

Kimberly and her former husband, George S., had a contentious relationship along with a special needs child. George was limited to supervised visitation, and there was some evidence indicating that he was in denial as to the nature of his son’s condition and special needs. The mother wanted to move to Tennessee with the parties’ son and her daughter from a previous relationship. Kimberly claimed that she wanted to move to Tennessee for the following reasons, among others: (a) place her son into a better school, (b) move closer to her sister, and (c) her parents were going to move to Tennessee also. Kimberly also argued that she could drive the parties’ son to Illinois for parenting time with George, and that George had not shown a real interest in restoring his relationship with his son.

What We Can Learn from Kimberly R. v. George S.

It’s worth noting that the First District Appellate Court, in analyzing the appeal, started by pointing out that prior relocation cases are of limited value when evaluating a current relocation case because “the result of each case depends on the unique facts and circumstances of the case.” This immediately begs the question of why even spend time looking at such cases. While the specific circumstances in Kimberly R. v. George S. may not be relevant to other cases, there is still value in the spotlight it puts on two issues that can occur in any case – evidentiary presentations that don’t work and conduct that can significantly undermine a litigant’s case.

Issue 1: An Incomplete Comparison

First, Kimberly testified that she wanted to enroll the parties’ son in a school in Tennessee that, she claimed, was far superior to the schools in Illinois. The evidentiary problem for Kimberly is that she did not present sufficient evidence concerning the available schools in Illinois. This highlights a basic point that if you are going to try to make a comparison, you need to present evidence supporting both sides of the comparison. Kimberly’s presenting evidence showing the merits of a school in Tennessee is meaningless in a removal context without also submitting evidence that comparable schools or services do not exist in Illinois.

Issue 2: Actions and Statements that Aren’t Compatible

Second, evidence existed showing that Kimberly had intentionally limited George’s ability to spend time with his son and had failed to take steps needed to assist in George’s reconciliation with his son. While this evidence might not rise to the level of parental alienation, it was enough to put a big question mark on Kimberly’s willingness to maintain George’s relationship with his son if she moved to Tennessee. As the party who filed the petition, Kimberly has the burden of proving that moving to Tennessee with the parties’ son would be in her son’s best interests. Kimberly’s actions undermined her ability to persuade the Circuit Court and the First District that she would, in fact, maintain her son’s relationship with George. While George did not show that Kimberly would, in fact, interfere with his relationship with his son, George did not have to prove such a fact. Kimberly had the burden of proving that the move to Tennessee was in their son’s best interests, and she failed to overcome that burden.

Issue 3: Future Hopes Do Not Equal Actual Plans

Third, Kimberly claimed that her parents were planning to move to Tennessee when she moved to Tennessee. Showing that her support network and her son’s grandparents were leaving Illinois would have supported her case. The evidence in the record, however, did not show any meaningful efforts by her parents to move to Tennessee. Kimberly’s parents had looked at some houses in Tennessee on one occasion but did not do anything close to making concrete plans to move. The court was apparently left with a “putting the cart before the horse” type problem: was Kimberly following her parents, or were her parents following her? The evidence pointed to Kimberly’s parents following her to Tennessee, which would not support removal.

Issue 4: Having a Credible Parenting Plan

An issue that comes up in removal cases is whether the parties can develop a credible parenting plan that preserves the minor child’s relationship with the parent who lives in Illinois. Key factors that have an impact on this issue are, for example, (a) how far from Illinois the parent seeking removal is moving, (b) the available transportation options, (c) the financial resources of the parties, and (d) the age of the child.

Kimberly vaguely claimed she would drive the parties’ son to Illinois from Tennessee. While Kimberly’s plan was vague and short on specifics, this was not the major problem with her proposal. Kimberly admitted that her son’s condition made it extremely difficult for him to sit in a car for more than 15 minutes. Kimberly did not present evidence as to how she would overcome this problem. Having a credible and sustainable travel plan in a removal case is critical, and Kimberly failed to meet this evidentiary burden.

A Cautionary Tale for Parents Considering a Long-Distance Move

Overall, the Circuit Court and the First District concluded that Kimberly did not present a compelling narrative that her moving to Tennessee was necessary. She also failed to convince either court that her moving to Tennessee with the parties’ son would not harm George S.’s relationship with his son. Asking a court to allow the removal of a child from Illinois is not a small matter, and having a coherent narrative in support of removal is critical.

Preparation is Critical in Removal Petitions

This highlights the need to spend considerable time preparing for a removal effort before filing a removal petition. In some cases, the need to leave Illinois happens due to an external event, such as a new spouse getting transferred to a new job out of state. When such an external trigger does not exist, making a strong removal showing is more difficult. This does not mean that removal is not possible without an obvious external trigger, but it does mean that the party wanting to move out of Illinois will have to build a strong case before filing the removal petition.

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