Modification of a Parental Allocation Judgment
Once a “child custody judgment,” or parental allocation judgment (as it is now known), has been entered (either through an agreement or by way of the court’s ruling), it cannot be changed unless by agreement or court order. For example, a request to modify allocation of parental responsibilities cannot even be made within the first two years after the allocation has been determined, unless the parties have agreed to the change, or the party requesting the modification alleges, by way of a sworn affidavit, that the present arrangement presents a serious endangerment to the child’s physical, mental, more or emotional health. The law requires affidavits which allege a basis to believe that the child’s wellbeing is seriously endangered. In short, cases where an allocation of parental responsibilities is modified within the first 2 years are rare and generally involve some form of abuse or abandonment.
However, the law provides an exception to this two-year rule. A petition to modify can be filed at any time by a party who has been informed that a parent intends to marry or reside with a sex offender, and that parent knows or should know, that the person he or she intends to marry or cohabit with is a sex offender.
Once these initial requirements have been met, and in cases where two years have elapsed since the “custody” / allocation judgment was entered, the party seeking a modification of the allocation of parental responsibilities still bears the burden of proving two elements: first, that a substantial change in circumstances has occurred; and second, that modifying the allocation of parenting responsibilities is in the best interests of the child.
The Illinois family laws which require proof of serious endangerment or an agreement of the parties are intentionally structured to make it difficult to modify parenting orders within the first two years. The laws reflect a public policy which favors maintaining consistency in children’s lives. The experienced attorneys at Kollias & Giese, P.C. can help you evaluate whether the facts of your case warrant a change of parenting time, and can guide you through the complex procedural requirements for seeking a change.
Most contested cases involving modification of “custody” / allocation of parental responsibilities require proof of a substantial change in circumstances. There are many examples of acts that would constitute a substantial change in circumstances sufficient to warrant a review of the best interests factors set forth in Section 610.5. Although the courts will decide whether a change is warranted on a case-by-case basis, the Appellate Courts under the former custody law provided some guidance. They have held the following facts to constitute a substantial change in circumstances to modify custody: cases where a child desires to reside with the opposite parent; cases where the residential parent moves into a different school district; and cases in which a residential parent develops a substance abuse problem. The change in circumstances must have occurred after the entry of the “custody judgment” or allocation judgment.
The revised Marriage and Dissolution of Marriage Act provides some exceptions to the rule requiring a substantial change in circumstances before “custody” / parental allocation can be modified In order to obtain a modification without a change in circumstances, the law requires proof that the modification would be in the child’s best interest; and one of the following are true:
- The modification reflects the actual parenting arrangement the parties have been following for the last 6 months, by consent of both parents;
- The modification is only a “minor modification;”
- The modification is necessary, because the judge would not have never ordered or approved the parenting plan had the judge been fully aware of the circumstances at the time; or
- The parties agree to the modification.
As with the initial determination of custody or parental allocation, the first step in the court process is typically mediation. If mediation is unsuccessful, the court generally seeks the input of a guardian ad litem, attorney for the child or child’s representative, each of whom have different roles. The court may also appoint an evaluator under Section 604.10(b) (as “the court’s witness”) or under Section 604.10(c) (as “a party’s witness”) to conduct an evaluation and make recommendations to the court. While these experts are not the ultimate decision maker, their reports do have a strong influence on the outcome of a case. Therefore, it is important that adequate preparations be made.
Supreme Court Rules mandate that all allocation of parental responsibilities matters (both the initial determination and modifications) are to be resolved within 18 months of service of the initial petition. This seems like a very long period of time, and to a child, it may feel like an eternity. However, given the legal complexity of disputes regarding “custody” / allocation of parental responsibilities and potential involvement of multiple expert witnesses, cases involving modification of parental responsibilities often take a long time to work their way through the court system.
If you are going through a dispute over “custody” / allocation of parental responsibilities, the professional and compassionate attorneys at Kollias & Giese, P.C. are available to guide you through the process.