In Illinois we now call “custody modification” by the longer name: Modification of Parental Responsibilities. It breaks down into the allocation involving two areas: 1) decision-making and 2) parenting time. Especially with the changes in the law regarding custody modification, consult with an experienced divorce lawyer if you have any questions.
The court can modify (change) either how parental responsibilities (decision making) are allocated or how parenting time is divided between the parents. But modification generally requires first alleging and proving that the circumstances of the child or of either parent have changed. Changes in allocating parental responsibility are not favored in Illinois. Usually, Illinois law requires one to demonstrate that:
1) there has been a substantial change in circumstances; and
2) 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 and come back later to seek primary parenting time (custody)?
Generally, no. In initial divorce cases, you start out on a level playing field in seeking parental responsibilities and parenting time. In modification cases, Illinois law has a bias favoring the status quo. Thus, one often has an uphill battle to modify the allocation judgment after the divorce. That stated, the 2016 Rewrite to Illinois custody laws has made it easier to modify parenting time in several ways.
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, Illinois law has special rules in modifying an order allocating parental responsibility (think decision-making custody). In these cases, the court will not allow you to file a petition for a change of parental responsibility (read decision-making custody), unless the court finds, based on affidavits, that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. This is difficult to establish. But one can seek to modify parenting time, even substantially, even if it is within two years.
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. Consider the first question involving in transferring primary parenting time from one parent to another. The court first focuses on whether there has been a substantial 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. Illinois law applies the preponderance standard. This is an easier standard to meet when modifying parental responsibility (decision making) or parenting time compared to what had been a clear-and-convincing-evidence standard.
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 primary caretaking parent, such as leaving the child home alone.
- 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, Illinois law has 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] It is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved under our best-interest factors the court been aware of the circumstances at the time of the order.
Of these, the most important is the six-months rule. This is the rule that allows one to bring modification proceedings that reflect the status quo for the last six months.
Basis for Transfer of
Custody Allocation Judgment: Not Allowing Visitation Parenting Time
Is the failure to allow parenting time or the other parent alienating a child from 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— (McHenry County 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, we have a 25-mile rule and a 50-mile rule. As applied to the collar counties (defined as Cook, DuPage, Kane, Lake, McHenry, or Will) to another residence greater then 25 road miles, this involves our relocation laws. For those who live outside of the collar counties, Illinois law has a 50–mile rule.
In either circumstance, if the parent who is allocated at least equal parenting time or more moves beyond these boundaries, this 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?
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 Appointment of 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. These other individuals are 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 court receives the written recommendation of the GAL. Often the court heavily relies on this recommendation in making its 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 recommendation 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.
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 binding. They are only recommendations. Yet the judge’s comments deserve serious consideration.