Child Custody Modification In DuPage County

 Posted on January 15, 2015 in Divorce

Life happens, and a child custody order which may have been perfectly workable for both parties can quickly become outdated, unfair, and harmful to the children. A job change, a new relationship, a midlife crisis and countless other items can significantly disrupt a divided family’s life.

As a rule of thumb, most family law orders need to be formally modified, or at least updated, every three or four years. Many parents are concerned about visitation and custody provisions which may no longer be in the children’s best interest. What does a party need to prove to modify custody in Illinois?

Time

Section 607(a-7)(1) states that a party must wait two years after the orders become final prior to asking for a modification, but there are some exceptions. Often, to reduce legal fees and avoid unnecessary emotional conflict, the parents may agree to change custody provisions. Courts typically honor these stipulations.

There is also an exception if "the child’s present may endanger seriously the child’s mental, physical, or emotional health." There are a number of things which may impair a child’s development, but the court is typically looking for imminent danger. For example, mom’s new live-in boyfriend may be a prior sex offender, or dad may be facing serious criminal sanctions. Though it is not a statutory requirement, the event must generally be unforeseen. A common example is an alcohol problem that mushroomed into a DUI.

Burden of Proof

To change custody, the moving party must prove there have been changed circumstances that were unanticipated at the time the original orders were entered, and the requested modification would be in the best interest of the child. One of the leading cases is In Re Marriage of Davis, and it gives broad discretion to judges when modifying prior orders. Persuasive evidence in a child custody modification may include:

• School Records: Are the children’s grades worse than they were when the original orders were entered? Have there been any discipline problems, counselling referrals or truancy court dates?
• Stability: This is one of the factors specifically mentioned by the Davis court. Sometimes, a parent’s inherent instability – such as frequent relocations or periods of unemployment – can support a modification request even if there is no precise change in circumstances.

Witness testimony, especially from disinterested persons like teachers and babysitters, is also useful, but it may be more difficult for the other side to explain or refute documentary evidence.

If your custody or visitation order has become a problem, contact the Lombard family law attorneys at A. Traub & Associates.