What was called custody modification is Illinois is now called modification of an order allocating parental responsibility or of “parenting time.” Especially with the changes in the law regarding “custody modification” it is critical that you consult with an experienced divorce lawyer if you have a question or concern.
The court can modify (change) either how parental responsibilities (decision making) are allocated or how parenting time is divided between the parents. But modification requires first alleging and proving that the circumstances of the child, or either parent have changed. Changes in allocating parental responsibility are not favored in Illinois and generally can only be made when the parenting seeking modification has demonstrated that modification is necessary to serve the children’s best interests.
Modifying child “custody” is difficult—but not as difficult as it once was…
Negotiations for my divorce have been going on for a long time, but now it looks like we can settle all the issues except custody. Should I settle the case and let my wife have the primary allocation of parenting time (residential custody) and come back later to seek primary parenting time (custody)?
Generally, no. In initial divorce and paternity proceedings the parties start out on a level playing field regarding allocating parental responsibilities and parenting time. In modification proceedings, the law has a bias in favor of continuing the status quo. It is more difficult to bring about a significant modifications after a divorce.
Rule for Petition of Change of Custody
Is there a special rule that applies to a change of orders allocating parental responsibility within two years of the original grant?
Yes. Illinois custody laws have favored stability of the child. During the first two years after an order allocating parental responsibility (think decision-making custody), the court will not allow you to file a petition for a change of custody, unless you establish, by affidavit, that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. This is difficult to establish.
Change of Circumstances
Isn’t child custody [read parental allocation] always decided on the basis of what is in the best interest of the child?
No. The first question in a transfer of primary parenting time from one parent to another is not what is in the best interest of the child. The first question in modification cases is whether there has been a change of circumstances since the entry of the original order allocating parental responsibility.
Law’s Bias in Favor of Stability in Illinois Custody Parental Allocation Awards
Does the law have a bias in favor of the current arrangement?
Yes. The law has a bias in favor of the child’s life being stable. Since 2016, the standard that applies is the preponderance standard. This is an easier standard to meet when modifying parental responsibility (decision making) or parenting time. Whether this has a significant impact in a particular case is something that should be discussed in detail with an experienced Illinois family lawyer.
Change of Circumstances for Change of Custody Parental Allocation:
Examples of facts that may be sufficient to show a change of circumstances sufficient to bring about a modification of allocation of parenting time or decision making are:
- Significant drop in the child’s school performance.
- Development of significant social/psychological problems by the child.
- Substantial neglect of the child by the custodial parent, such as leaving the child home alone, or neglecting the child so the child becomes injured.
- A parent engaging in significant behavior that would tend to alienate the child from the other parent.
Are there exceptions to needing to prove a substantial change in circumstances to modify parenting time?
Yes. Besides the parties agreement to the modification there are three exceptions:
(1) [Six Months Rule] the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification(provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent);
(2) [Minor Modification] the modification constitutes a minor modification in the parenting plan or allocation judgment;
(3) [Unknown Circumstances Rule] the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved under Section 602.5 or 602.7 had the court been aware of the circumstances at the time of the order or approval.
Of these the most important is the six-months rule, that is the rule that one can bring modification proceedings if it reflects the status quo for the last six months.
Basis for Transfer of Custody Allocation Judgment: Not Allowing Visitation Parenting Time
Is failure to allow parenting time or the parent alienating a child from the other parent a basis for a change transfer of custody an order allocating parental responsibilities?
It may be. These are the sort of cases where it is essential to consult with your lawyer.
Relocation of the Child
I live in one of the collar counties—in McHenry County (or in Kane County, Lake County, DuPage Country, Will County or Cook County). My former wife has is seeking to move more than 25 driving miles and she has primary residential custody. Is relocation of our children with or without permission of the court a basis for a transfer of custody?
Perhaps. Illinois law changed in 2016 including changes regarding Illinois law involving relocation of the children. This is described in detail in the Gitlin Law Firm’s Q&A regarding relocation. As discussed in that Q&A, when the child’s primary residence is in a collar county (defined as Cook, DuPage, Kane, Lake, McHenry, or Will) to another residence in the state greater than 25 miles, this is defined as a case involving relocation. For those outside of the collar counties, then there is a 50–mile rule. Illinois law provides that the relocation constitutes a substantial change in circumstances. Because of how complex Illinois law is regarding relocation and modification of orders allocating parenting time (custody), it is critical that you consult with an experienced lawyer for any questions.
What are the usual steps in “custody” modification cases?
—Mediation
The first required step is mediation. After this, the steps often taken may include ordering the appointment of an evaluation by a mental health professional regarding the child’s best interest (formerly called a custody evaluation) and/or the appointment of a Guardian ad litem (GAL).
—Court orders an Investigation/Evaluation or a GAL
In cases where modification of “custody” (now known as parental responsibility or parenting time), the court often orders an investigation/evaluation by a mental health professional with written recommendations to be made to the judge. These evaluations usually include psychological testing of the parents, interviews with the parents and the children and with other individuals (so called “collaterals.”). Sometimes the judge will appoint a lawyer to represent the child. Usually, this involves the appointment of a guardian ad litem (a lawyer appointed who has the ability to render a report as to the children’s best interest).
—How important is the recommendation by the evaluator or the Guardian ad Litem?
The written recommendation by the GAL often is relied upon in the court’s decision. Yet there are cases where the court will go against a court ordered evaluation or the recommendation of the GAL. The “custody” evaluation or the evaluation by a GAL cannot be a substitute for the judge’s making his or her own decision on the issue of the child’s best interest.
—Pre-trial Conference
A final step before trial is a pre-trial conference. The judge, after hearing the positions of the parties by their lawyers as to what will be proved in trial, will attempt to bring about a settlement. The judge’s pre-trial conference statements are not the decision in the case but the judge’s comments and deserve serious consideration.