Do unmarried fathers have the right to stop the move away of a child that they love, and with whom they have had a strong parenting relationship? The Illinois Appellate case of Fischer v. Waldrop illustrates the principle that a father, though he be unmarried to the mother of his child, may enjoin the move-away of a child to another state.
In 2003, the Illinois legislature amended the Parentage Act to specifically address removal. In particular, the legislature amended section 14 of the Parentage Act, pertaining to judgments, to provide that “[i]n determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the [Marriage Act], including [s]ection 609.” 2003). Finally, the legislature added a new section, which provides, in relevant part:
“(a) In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin removal of a child, the [c]ourt shall consider the following factors, including, but not limited to:
(1) the extent of previous involvement with the child by the party seeking to enjoin removal;
(2) the likelihood that parentage will be established; and
(3) the impact on the financial, physical, and emotional health of the party being enjoined from removing the child.
(b) Injunctive relief under this Act shall be governed by the relevant provisions of the Code of Civil Procedure
The trial judge ruled that the father’s child could move out of state with the mother’s new husband. ON appeal, the court found that the father’s right to an injunction existed, and further, that the child’s best interest was not served by being removed from the love, care, and parenting of her natural father. The court stated:
The trial court properly considered the impact the injunction would have on the financial, physical, and emotional health of Jill. The evidence demonstrated that the impact on Jill would be tremendous. Nonetheless, the court still erred in denying the motion for permanent injunction because not only did Vincent prove his entitlement to injunctive relief, the court specifically found removal was not in Callie’s best interests.