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We've communicated a few times so I wanted to go straight to you, but I accidentally posted the question to everyone.I have filed for divorce and due to many reasons had to personally serve him the papers. He is still within his 10 day period to file his appearance with the court. So technically, nothing has even started yet. Is my husband allowed to move out, not tell where he is living, and not see the kids anymore? Is there a way to force him to see our children?
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Answered in 36 minutes by:
3/17/2018
RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
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Good afternoon,

Good to hear from you. A spouse is permitted to move-out of the home. The fact of the matter is, the court is going to require him to exchange information with you regarding an address and valid phone number for purposes of custody and visitation. And in filing his Answer to the divorce complaint, he'll have to provide his address and telephone number anyway so I'm not sure what he's trying to prove but not giving you this information.

As far as children are concerned, now that the divorce petition is filed, if you wanted to, you could file a motion with the court for temporary orders regarding things like possession of the home, custody/visitation and support while the divorce is pending. But, while the court can set a visitation schedule when he may see his children, a court cannot force him to exercise that right, sadly. If he continues to avoid having contact with the children, it's grounds for you to ask the court to limit the amount of visitation time he gets, but they cannot make him be a good parent.

RobertJDFL
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Customer reply replied 1 month ago
Geez, my kids are just traumatized. They just want to be with their Dad. I know he's not telling me where he's moved to be an asshole, and to continue to control and manipulate me until the bitter end. Sorry for my language! I am just so mad for my children.It just boils my blood that he cannot be forced to be with them, even with a visitation order set.I do have another question, if that's ok?
Customer reply replied 1 month ago
I know that the terminology in IL has changed from custody to parenting time or something like that, I can't keep everything straight in my mind, there is so much insanity everyday. In any event, when I filed the petition (I tried to attach and it didn't work, I'll copy and paste below) there was only mention that I want full decision power over my oldest son's mental illness problems. My husband isn't involved anyway and I've always done it all, but I don't want to end up in mediation everytime he decides he disagrees with a decision I make for his care. But now, I really don't want to have "joint" everything else as it says. Is there such a thing anymore as sole custody? And if so, how do I get it?IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, WHEATON, ILLINOIS
IN RE THE MARRIAGE OF: ) ) KATHLEEN KOWALCZYK ) ) Petitioner, ) and ) NO. ) MICHAEL KOWALCZYK, ) Minor Children Involved ) Respondent. )
VERIFIED PETITION FOR DISSOLUTION OF MARRIAGE---WITH MINOR CHILDREN
NOW COMES the Petitioner, KATHLEEN KOWALCZYK (herein referred to as "KATHLEEN") by
and through her attorneys, HASKINS BECKER, P.C., pursuant to 750 ILCS 5/403, and in support of her
Verified Petition for Dissolution of Marriage, states as follows:
1. KATHLEEN is 36 years of age and resides at 218 East Sunset Avenue Lombard, Illinois 60148.
KATHLEEN is currently unemployed.
2. MICHAEL is 38 years of age and his current address 218 East Sunset Avenue Lombard, Illinois
60148. MICHAEL is employed as a Journeyman Plumber with Brandenburger Plumbing, Inc.
3. The parties were married on February 14, 2009 in Cook County, Chicago, Illinois, and such
marriage was duly registered there.
4. No Petition for Dissolution of Marriage is pending in any other county or state.
5. That two (2) children were born to the parties as a result of the marriage, M.R.K. age seven (7),
born September 18, 2010, and M.C.K., age three (3), born May 27, 2014. That no other children
were adopted by the parties and the Petitioner is not now pregnant.
6. That the parties are fit and proper persons to share in the joint educational, religious, extra
curricular, and medical decision making power for the minor child, M.C.K. However, due to
M.R.K.’s special mental health needs and concerns, KATHLEEN shall have sole responsibility
2
and decision making power for M.R.K.’s medical decision making. The parties shall share in the
educational, religious, and extra-curricular decision making power the minor child, M.R.K. In
regards ***** ***** allocation of parenting time, KATHLEEN shall be designated as the parent with the
majority of the parenting time, as well as the residential parent for educational purposes and that
MICHAEL having liberal and frequent parenting time with the minor children.
7. KATHLEEN and MICHAEL mutually agree to waive the requirement that they have lived
separate and apart for a period in excess of six (6) months. KATHLEEN and MICHAEL have
irreconcilable differences that have caused an irretrievable breakdown of the marriage. Efforts at
reconciliation have failed, and attempts at reconciliation in the future would be impracticable and
not in the best interest of the family.
8. KATHLEEN is a resident of Illinois in the County of DuPage, and has been a resident of Illinois
for more than ninety (90) days preceding the commencement of this action. The jurisdictional
requirements of the Illinois Marriage and Dissolution of Marriage Act therefore exist, and there
exists grounds for the dissolution of the marriage of the parties.
9. The parties during the marriage have acquired marital property, which should be divided between
them in an equitable manner.
10. The parties during the marriage have incurred marital debt which should be apportioned between
the parties in an equitable manner.
11. KATHLEEN has acquired both prior to and during the marriage certain non-marital property,
which should be assigned to her.
12. MICHAEL is gainfully employed, has earning power, and receives a sufficient income from his
employment and is well able to provide for his own support and to provide for the support of the
parties’ minor children, pursuant to current Illinois statutory guidelines.
3
13. KATHLEEN has been the primary caretaker of the parties’ two (2) minor children and, as such,
has stayed at home as a homemaker. Therefore, she is in need of support from MICHAEL in the
form of maintenance, pursuant to Section 504 of the Illinois Marriage and Dissolution of Marriage
Act.
14. MICHAEL is a successful journeyman plumber and earned over $124,000.00 yearly gross income
in 2017 and is able to support himself without contribution in the form of maintenance from
KATHLEEN.
15. MICHAEL receives a sufficient income from his employment and is well able to provide for his
own support and should be barred from seeking maintenance from KATHLEEN.
16. MICHAEL has suffi
Customer reply replied 1 month ago
It cut off some of the bottom, let me know if you need it

I do apologize, I did not see this reply!

You are correct that Illinois changed the verbiage they use. Instead of "legal custody" (the right to make decisions concerning things like the childrens' education, healthcare, religious upbringing, etc) and "physical custody" (where the children will live primarily) there is now "parental responsibility" and instead of primary custodial and non-custodial parent, you have parenting time.

If you want sole decision making authority over all major issues, you could just say:

"Petitioner is a fit and proper person to be allocated all decision-making responsibility for each significant issue affecting the minor children and it is in the best 4 interests of the minor children that Petitioner have sole decision-making responsibility with Respondent having reasonable parenting time."

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Customer reply replied 1 month ago
But the petition has already been filed. Is it too late?
Customer reply replied 1 month ago
Also, even if it isn't too late to have my attorney change to wordage as you suggested above, I would have to prove that he is not fit or something correct?

Since he hasn't filed his answer to the divorce, your lawyer can file an amended petition. If he does file an answer before you get the chance to do that, then your lawyer would have to go to court and ask for "leave to amend" the petition - that is, permission to file an amended petition.

And yes, in the absence of an agreement between the two of you, it would be up to a judge to decide how parental responsibility will be assigned. In doing so though, one of the main things they're going to look at is who has been the person making these sorts of decisions in the past. If you were the one going always planning and going to doctor visits, care for your child's special mental health needs and concerns, the parent that handled educational matters, etc., and your husband had little to no input, then it's more likely than not that you would be given sole parental responsibility.

A court could also decide, for example that you share parental responsibility, but that you will have sole responsibility over your child's mental health needs.

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Customer reply replied 1 month ago
Ok, well yes. I do it all. Always have. He used to be minimally involved (mostly because of his job), but was always there when the major stuff happened, i.e. when we had to make the terrible decision to have our son who was 5 at the time admitted into a pediatric psychiatrist hospital. But despite those types of things I have always managed the bills, the kids, all of my oldest boys appts 3 times a week, etc... Frankly, he wouldn't even know where to start.But, besides the fact that I can clearly prove I have always done every single thing for them, will I have to also prove some way that he is unfit to do So? And then he can come back at me?This could get so dirty and nasty in court (and expensive!) if things go down that road and we end up in a trial.

When parents have a dispute over child custody, or “parenting responsibilities” as referred to under the new statute in 2016, Illinois courts generally use the “best interests of the child” standard in reaching a decision. “Best interests of the child” refers to a list of factors that a judge will examine when deciding how parental responsibilities should be arranged. In other words, if this were to go in front of a judge (and most cases don't), the judge is going to weigh the evidence -what they've heard and seen from both of you, and then decide what is in the best interest of the children. You don't have to prove your spouse unfit, you just have to convince a judge that the childrens' best interest is better served being with you.

When making a determination as to how to arrange “parental responsibilities” (traditionally known as “custody”), among the factors a judge will consider include, but are not limited to, the following:

  • The wishes of the child, taking into consideration the child’s maturity and ability to express reasoned and independent preferences as to decision making;
  • The child’s adjustment to his or her home, school, and community;
  • The mental and physical health of all individuals involved, including the child and both parents;
  • The ability of the parents to cooperate with decision-making for the child, or whether the level of conflict between the parents might affect their ability to share decision-making responsibilities;
  • How much each parent participated in past decision-making responsibilities for the child;
  • Any prior agreement or course of conduct between the parents relating to the decision making for the child;
  • The wishes of the parents;
  • The child’s needs;
  • The distance between the parents’ homes, the cost and difficulty of transporting the child, the daily schedules of each parent and child, and the ability of both parents to cooperate in the parenting time arrangement;
  • Whether a restriction on decision-making is appropriate under Section 603.10 (whether one parent acted in a way that seriously endangered the child’s physical, moral, mental health or emotional development);
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
  • Any other factor that the court finds relevant.

750 ILCS 5/602.5(c)

I highlighted things that I thought were especially significant in those factors -that if you look at the course of conduct and past history -based on what you have told me - it is you who has been at the forefront of everything. So yes, while you welcome dad to have visitation with the children and want him to see the children, it is you who has done everything raising the children up to this point so it would make little sense to change that and disrupt what the children know now.

Furthermore, the fact that dad left, won't even give you his address or contact information and has not expressed an interest in seeing his children is going to reflect poorly on him.

I agree things can get messy and expensive, but as I've told family law clients in the past, where there are children involved, it need not get that way. You are, whether you like it or not, forever connected in one another's lives because of your children. Forever. Divorce is a legal function, but it doesn't change that fact. If you want to hate one another privately, fine, but put aside your differences and work together on reaching an agreement that serves the best interest of your children, because being petty and trying to use the children as pawns only hurts them and drags things out unnecessarily. I know you know this, by the way. Hopefully he does too.

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Customer reply replied 1 month ago
Oh I know it. He's controlling and manipulative to me, out of spite, and it unfortunately affects our kids. He just keeps pulling new shit every day.I'm scared that if I go for full custody or whatever the new term is, that clearly the judge will see that is in their best interest because I have always done every single thing. But is he able to fight that by using "dirt" against me or portray me as unfit or anything?Honestly, this is the most terribly insane thing I've ever experienced in my entire life!

He can certainly try to argue that you're unfit, but he'll need evidence of such. He cannot just say it. And realistically, are your children safe, healthy, happy? Are they at risk under your care? Is there anything he could raise such as a drug or alcohol problem?

And for that matter -if he believed you were an unfit parent, why did he leave and not take the children with him? He has just as much right to them as you do, he certainly could have. But he felt comfortable leaving them in your care and not having contact with them.

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Customer reply replied 1 month ago
I'd like to do a call if you can

Sure, you understand that's a premium service with an additional charge from the website, yes?

Ask Your Own Family Law Question

I have no problem calling, but wanted you to know that they will charge you the additional money.

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Customer reply replied 1 month ago
Yep
Phone call session started

Nice chatting with you. Sorry we had to cut it short. If you need to, you can always reply back here, as discussed.

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Customer reply replied 1 month ago
it was nice to actually talk to an adult! I appreciate all your time. I've actually thought of some other questions. Once my kids aren't beating each other up ��, I'll send a reply. Thanks Again!
Customer reply replied 1 month ago
Hi,
Here's something for you. I am positive I read somewhere yesterday about an order of protection that can be gotten on the basis of emotional/psychological neglect of a child. Now of course I can't find it. I will keep looking, but in the meantime, would you advise someone to wait until he has done his damn answer? Or how that could impact the outcome of the divorce. Like we said before about my oldests mental needs...he has had significant regression in symptoms because of everything with Dad. And, as much as I want him to have a relationship with his kids, what he's doing is making Michael much worse. Just in the time since last spoke he has called him so many times, left voicemails, (all of which were never replied to), cried and destroyed stuff because he is so hurt. Like we said, it's best for both to be involved, but if he's going to continue to be so unreliable, and because it legitimately affects Michael's mental state, maybe I need to move down this route????

Are you sure you read this for Illinois? In Illinois, you can get an Order of Protection (a restraining order) based on physical abuse, harassment, interference with personal liberty or intimidation of a minor, but none of these, looking at the law, seem to fit what you describe.

Physical abuse is defined by Illinois law to include:

  • sexual abuse
  • physical abuse, confinement, or restraint
  • purposeful, repeated and unnecessary sleep deprivation
  • behavior which creates an immediate risk of physical harm

Harassment is defined by Illinois law to include:

  • creating a disturbance at your place of work or place of school
  • repeatedly calling your work or school
  • repeatedly following you around in a public place or places
  • repeatedly observing you by loitering outside of your home, school, work, vehicle, or looking in through your windows;
  • threatening physical abuse, confinement, or restraint
  • improperly hiding your child from you or repeatedly threatening to do so, repeatedly threatening to improperly remove your child from your physical care or from the state, or making a single one of these threats following an actual or attempted improper removal or hiding of your child

Intimidation of a dependent includes:

  • when the abuser makes you participate in, or witness, physical force, physical confinement, or restraint against any person

Interference with personal liberty includes:

  • committing or threatening to commit physical abuse, harassment, intimidation or deprivation with the intention of forcing you to do something you don’t want to do or not allowing you to do something that you have a right to do.

An order of protection may be obtained against against a family or household member who has committed acts of domestic violence against the victim or their minor child.

Assuming you could get an Order of Protection, it generally would prohibit all contact between your spouse and children. I think that could escalate things at a time when you're trying to just get the process started.

(I should add that I of course default to your lawyer who knows more about your case, the judges, and how matters are typically handled in Illinois).

Have you tried explaining to your husband that he's causing Michael a lot of stress and that because of his mental health needs he's really struggling and that you have to try to come together to make this easier not just for him, but for the kids?

If you're not going to get cooperation from him, I know we talked about your attorney will likely ask the court for temporary orders establishing custody/visitation, child support, etc., while the divorce is ongoing. What if you asked that visitation be supervised and/or only take place for now at your house? Would that maybe help him feel more at ease during this process?

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Customer reply replied 1 month ago
I've read all of those items you listed above. I could've sworn what I read was for IL, but apparently not. I wish you could just call me whenever you have time!
Customer reply replied 1 month ago
Hi. Are you on now?

I am, for a little longer. How can I help?

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Customer reply replied 1 month ago
I know it's later there so I wasn't sure if you would be on. But I am worried I may have made a fatal error - you tell me.Something you and I had yet to discuss was that I am considering moving out of state after the divorce to where parents have retired so I can have more support, help with Michael, etc... My husband has always said he doesn't care, go, blah blah... But you know how he is, I wouldn't be surprised if he changed his mind to willingly allow it.Anyways, my attorney knows that that is something I am considering. But should there have been language in the petition regarding that? I just thought of this and my heart sunk that maybe I missed my chance or something because it wasn't put in the petition??

Not a fatal error at all. If that is something you are considering, it is something that can be raised later, such as being worked into your marital settlement agreement. My wife actually has language in her MSA where her ex consents to her relocating within X amount of miles without having to go back to court.

If it's not written into your final decree, it doesn't mean it cannot happen. There is a process that must be followed, however. The parent seeking to move with the child will have to send notice in writing to the other parent, stating that he or she intends to move. To send proper written notice, the following requirements must be met:

  • The notice must state the date when the parent intends to move;
  • The notice must list the new address where he or she will be moving;
  • If the move is not permanent, the notice must state the length of time the parent will be living in the new location;
  • The notice must be given to the other parent at least 60 days in advance of the move, unless the court orders otherwise. If such advanced notice would be impracticable, written notice would have to be given at the earliest date practicable.



If the non-moving parent agrees with the move, he or she would sign the written notice, the moving parent would file the signed notice with the court, and the move would be allowed without any further court action. If the non-moving parent objects to the move, or does not sign the written notice, the moving parent must file a petition with the court asking for permission to relocate.

So if he doesn't object later on, then it's fairly straightforward. If he does object, then it goes to a judge to decide if it is in the best interest of the children to allow you to relocate. In other words, will the move enhance the lives of the children? Being closer to other family could certainly enhance their lives positively, and there may be other positive benefits, such as better schools, or better doctors able to treat your son's condition, for example. The other thing the court wants to ensure is that if you move, that a reasonable visitation schedule could be worked out so that the children would still have contact with their father.

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Customer reply replied 1 month ago
Again, this has been decided for sure by me. It is a very hard decision to make, and mostly it relates to making sure my son will be able to continue to get the absolutely wonderful support team and services at our current school district. But that is something I am working on learning about.If he sticks to his word (for once) and does not fight me on the move I would like it to state something along the lines of "Kathleen can move out of state with the children, at any time going forward". I know it certainly wouldn't be written like that, but I don't want to have to move immediately if I don't feel ready to, but still be allowed to a year from now, for instance.Also, as far as reasonable visitation schedule the courts want...we spoke, you know he doesn't even want them basically. What schedule is deemed reasonable for out of state moves? He won't even follow it I am sure.

Usually where parents are out of state the non-custodial parent gets visitation during school breaks and at least part of summer vacation.

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Customer reply replied 1 month ago
I thought so. He can't do that. He can't even pay a bill lol. So if that is the type of schedule agreed upon, he doesn't have to stick to it I know. He can't be forced. But at least now I know what would be considered reasonable and be prepared that if one day he goes back to his old self that is the type of time he'd have them. Thanks as always!My mind NEVER stops about this so I am sure we will chat again. Thank you again so much!

My pleasure. I'm probably signing off for the night now, so if you reply and I don't get back to you until tomorrow, that's why. Have a great evening!

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I did a simple dissolution of marriage approximately a year
I did a simple dissolution of marriage approximately a year ago (in Florida). There was a division of assets (with monetary value assigned to each) in the agreement signed by us and a judge. My ex sta… read more
Michael Bradley
Michael Bradley
JD
1,371 satisfied customers

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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