Under normal circumstances, under Illinois law, when you ask for a modification, you must establish that at least two years have passed since the last custody order was signed and that there has been a change of circumstances. The change of circumstances means a change in the circumstances in the life of the child, the parent with the residential custody (sometimes called the primary residential parent) or the parent without residential custody (or the non-residential parent). Factors the court will consider include, but are not limited to:
- The wishes of the child, taking into consideration the child’s maturity and ability to express reasoned and independent preferences as to decision making;
- The child’s adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved, including the child and both parents;
- The ability of the parents to cooperate with decision-making for the child, or whether the level of conflict between the parents might affect their ability to share decision-making responsibilities;
- How much each parent participated in past decision-making responsibilities for the child;
- Any prior agreement or course of conduct between the parents relating to the decision making for the child;
- The wishes of the parents;
- The child’s needs;
- The distance between the parents’ homes, the cost and difficulty of transporting the child, the daily schedules of each parent and child, and the ability of both parents to cooperate in the parenting time arrangement;
- Whether a restriction on decision-making is appropriate under Section 603.10 (whether one parent acted in a way that seriously endangered the child’s physical, moral, mental health or emotional development);
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- Any other factor that the court finds relevant.
If both parents agree on the changes, the judge will most likely grant them. But the ultimate standard is the best interest of the child. This is true if you are seeking to modify custody or just modify the parenting time.
If a parent is seeking a modification less than two years from when the previous order was entered, you will have to prove to the court that the current environment the child lives in may seriously endanger the child’s physical, mental, emotional, or moral health. Often, only an emergency situation will qualify for a modification during the first two years of a custody order. For example, if the child is now being physically abused, that could constitute an "emergency."
When seeking a modification, a motion to modify custody must be filed. The motion must be filed in the county where the original custody order was signed. If the child no longer lives in that county, it may be possible to have the case transferred. However, the case will most likely have to begin in the original county.
When you file a motion you have to submit an affidavit that establishes under penalty of perjury that your case meets the requirements for a modification. Often a judge will want to order a formal custody evaluation. There will also be status hearings and attempts to settle the issue short of a full trial. If the issues cannot be settled, a full trial on the modification will be held.