Unfortunately, a final judgment of divorce and custody order does not mean you and your ex-spouse won’t be on separate sides of the courtroom again. If you have children, situations may cause you or your ex-spouse to return to court seeking a change of custody. Since Illinois prefers that children be kept in a stable environment, any chance of success depends on you having a strong case for disturbing that environment.
Time Limit on Filing
Generally speaking, two years must pass before a noncustodial parent can file for a modification of custody. Parents who file after two years will have to prove that there has been a substantial change in the minor child’s circumstances and it's in the child's best interests to modify custody.
Parents seeking to change custody before the two-year time frame are required to show, via a filed affidavit and at the court hearing, that the child’s current situation is a serious endangerment to her physical, mental or emotional health. This can be hard to prove, which is why individuals often must wait the full two years. The two-year waiting period can be waived if both parents are in agreement regarding modification.
Initial Custody Vs. Modification
When initially determining custody during a divorce, the court examines various factors to decide what type of custody would be in the child's best interests. Some of these factors include the mental and physical health of the parents and child and the bond the child has with each parent, the community and his school.
In a modification, courts favor keeping the child in a stable environment, resulting in a bias toward maintaining his home with the custodial parent. The court will consider whether there has been a substantial change in the child’s circumstances since the original order and whether a change in custody would serve the best interests of the child. Examples of changed circumstances that may warrant modification include a substantial drop in the child’s school performance, child’s development of health problems because of the custodial parent’s neglect, abuse of the child, exposing the child to immoral conduct or leaving the child at home alone at an inappropriate age.
Read More: Shared vs. Residential Custody
Documents and Filing
Illinois law provides a procedure for a parent seeking to modify custody. The noncustodial parent will file a motion for modification of custody -- along with the corresponding affidavit if the two-year limit has not been met. There are two ways to serve your spouse: Either she can sign documents stating she received the papers or you can mail the papers to her and then complete a form certifying the date they were mailed. All of these documents should be filed in the court that issued the original custody order.
Mediation and Appointing Professionals
Depending on which county you live in, you and your ex might have to participate in mediation before your court hearing. In addition, depending on the circumstances stated in the complaint, a judge may require the parents and children to undergo psychological testing to determine their mental functioning. Judges may also appoint a lawyer, child psychologist or guardian ad litem (a representative for the child) to report on which custody situation would be in the child's best interests.
Pretrial and Trial
During a pretrial conference, the judge will make the opposing sides state what their arguments are and what they plan to prove in trial, and go over any reports or testing results from appointed professionals. The judge will give her opinion on what the potential ruling might be based on what is said at the conference in an effort to bring about settlement. If the parties still cannot reach an agreement, the case will go to trial. At trial, the judge will hear testimony and arguments from each side as well as that of any witnesses. At the conclusion of the trial, the judge will make a decision and enter it as a final order.
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