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Custody Modification (Changes in Custody)

The Gitlin Law Firm, P.C., Woodstock, Illinois    © 2013
www.gitlinlawfirm.com



Q:It's been a year since my divorce judgment was entered giving my wife custody. I have real concerns about the well being of my children but my lawyer tells me it will be virtually impossible to win custody because it has not been two years since the entry of the divorce decree. Please explain the two year rule.

A:Illinois divorce law was designed to try to give some stability to children following the entry of custody judgments and orders. The standard to bring custody modification proceedings within two years is the “serious endangerment” standard. Many Illinois lawyers mistakenly believe that under this standard, the party seeking custody must prove at a contested evidentiary hearing that the custodial parent has seriously endangered the children. This has been clarified by the Illinois Supreme Court. To bring custody modification proceedings within two years the court has to permit the filing based upon affidavits that indicate there is reason to believe the child's present environment may seriously endanger his physical, mental, moral or emotional health. In short, it is not necessary that there be a contested evidentiary hearing demonstrating serious endangerment for a party to bring custody modification proceedings within two years. Instead, there need only be affidavits which give the court reason to believe that serious endangerment may exist.

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Q:More than two years have passed since the custody order was entered. What are the standards that apply once more than two years have passed since the last custody order or judgment?

A:The law regarding custody modification is complicated. By this Q&A I will try to simplify it and perhaps oversimplify matters.  First, you should understand that the burden of proof in custody modification proceedings is “clear and convincing evidence.” Most people have heard of the “beyond a reasonable doubt” standard. This is the standard used in criminal cases. It is higher than the standard of “clear and convincing evidence.” Lower than the standard of “clear and convincing evidence” is the standard of “preponderance of the evidence.” I explain to clients that a preponderance of the evidence is merely tipping the scales. In short, commons burdens of proof range as follows:

    • Beyond a reasonable doubt (the criminal standard)
    • Clear and convincing evidence standard (a high burden of proof); and
    • Preponderance of the evidence standard (the usual burden of evidence in non-criminal cases).

In short, the burden of proof in custody modifications is the “clear and convincing” evidence standard which is greater than the normal burden of proof, but not as difficult as the burden of proof of finding someone guilty in criminal cases.

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Q:What about facts before the custody order was entered? If the facts show that my former spouse was a bad parent before the custody order was entered, won't these be considered by the court in determining custody?

A:Generally, the answer is no. Facts that occurred before the entry of the custody order are generally not admissible.

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Q:Besides the higher burden of proof you discussed, what other difficulties are there in bringing a custody modification case?

A:Besides the higher burden of proof, a person must also show a substantial change in circumstances. There is a technical difference about the substantial change in circumstances depending upon whether the last custody order was joint or sole. Nevertheless, you should understand that generally the substantial change in circumstances must be one that is after the date of the last custody order or judgment.

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Q:Let's say that the court finds, by its high burden of proof, that there has been a substantial change in circumstances. What is the standard the court applies to modify custody?

A:Even if the above hurdles are met, the party seeking custody must demonstrate that it is necessary to change custody to serve the child's best interest. One of the significant factors in custody modification proceedings is what I generally refer to as the “stability factor.” This is the factor in the custody statute which addresses the child's adjustment to his home, school, and community. This factor will almost always favor the child's current residential custodian.

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Q:Isn't it easier to obtain a modification of custody if I have joint custody?

A:Generally, the answer is only if the original court order were one for shared parenting time on a relatively equal basis. If the original judgment is a joint parenting agreement only in the sense that major decisions are shared, it might not be easier to modify custody in the future. Many parents mistakenly believe that obtaining joint custody in the sense of sharing major decisions affecting the children will give them a significant leg up if there are contested custody proceedings in the future.

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Q:It sounds like it is difficult under any circumstances to modify custody. Is this true?

A:Yes.

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Q:What are the normal steps in custody modification proceedings?

A:In McHenry County, Lake County, and Kane County, the counties in which I usually practice, the first step is generally mediation. I have had success with mediating post-decree custody disputes. The next step, however, is usually a custody evaluation with a mental health professional. The last and most significant steps are preparation for trial and trial of the case.

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Q:How old do my children have to be to decide where they want to live?

A:In Illinois, children do not decide where they will live. Instead, case law provides that the a child's wishes are considered to the degree that those wishes are consistent with the best interest of the child. The greater the child's age, intellect and maturity the stronger the court should consider the child's preference. Thus, there is no magic age in Illinois. Some states do provide for an age certain when the children's wishes are to be strongly considered by the court, such as age 12 or 13. Illinois law does not.

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The Gitlin Law Firm provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.

The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401

www.gitlinlawfirm.com

Gitlin Law Firm, P.C.

Updated:  April 23, 2013


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