Since January 1, 2016, what was called modification of custody is now called modification of an order allocating parental responsibility. Especially with the changes in the law regarding what has been called “custody modification” it is critical that you consult with an experienced divorce lawyer if you have a question or concern in this regard.
The court can modify (change) custody. 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. It is also important to consult with a lawyer regarding the importance of the change in the law regarding the burden of proof.
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 child 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)?
No, definitely not. In initial divorce and paternity proceedings the parties start out even 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, especially as to the allocation of parental responsibilities (decision making responsibilities) within two years following the 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. The law’s bias is in favor of stability for the child. During the first two years after an order allocating parental responsibility (what the layperson generally calls 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 always decided on the basis of what is in the best interest of the child?
No. The first question in a transfer of custody is not what is in the best interest of the child, but whether there has been a change of circumstances since the original order allocating parental responsibility was entered.
Evidence for Change of Custody
If I can prove that it would be in the best interest of my child for custody to be transferred, will the court allow the transfer?
No, not merely on the basis of the best interest of the child. The best interest of the child is the basis upon which the court grants custody initially. In a modification proceeding, you must prove that since the original custody judgment was entered a change has occurred in the circumstances of the child or either parent. You must also prove that a change of custody is necessary to serve the best interest of the child.
Until January 1, 2016 the standard was that one had to prove this by “clear and convincing evidence.” But since January 1, 2016, proof need only be by a “preponderance of the evidence.” Thus, it should be somewhat easier to modify parenting plans than it has been in Illinois so long as the change is necessary to serve the child’s best interests and things have changed since the divorce in a manner affecting the child or children.
Law’s Bias in Favor of Stability in Illinois Custody 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. Before January 1, 2016, the legal standard was that the parent seeking modification of custody had a very high burden, what was called “clear and convincing evidence.” That was a standard higher than merely tipping the scales — the so called preponderance standard. As of January 1, 2016, the standard that now applies is the so called 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
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.
- Significant health problems due to the custodial parent’s neglect.
- 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.
Basis for Transfer of Custody Allocation Judgment: Not Allowing “Visitation”
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
Is relocation of a child from the State of Illinois without permission of the court a basis for a transfer of custody?
Historically, the answer was no. But this changed starting January 1, 2016 with the changes regarding Illinois law regarding removal / relocation. 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. And the child’s current primary residence can be changed outside the borders of Illinois only if it is within 25 miles of the current primary residence. Illinois law now 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. See also the FAQ regarding removal / relocation.
What are the usual steps in “custody” modification cases?
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 GAL?
The written recommendation will generally be a significant relied upon in the court’s decision although 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
The final hoop 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.