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My name isXXXXX and I live in Illinois.My wife ...

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My name isXXXXX and I...
My name isXXXXX and I live in Illinois.My wife has a duaghter from a previos marriage. As part of the divorce she was granted sole custody. When our daughter turned 14 her biolicaly fater told her she needed to decide where she wanted to live. This of cousre put her in a funk. I bought a book which showed that since my wife had sole custody the only way to change resindence for for a 16 year old to petetion the court and show just cause. The question was dropped. However she is now 15 and he has started in again. The result has been our daughter has become very withdrawn and all of her school grdaes have dropped way down. My wife is concerned but I still believe that since she was granted sole custody the child does not have to make any such choice until the age of 18. What is the specific law.
Submitted: 9 years ago.Category: Family Law
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3/1/2008
Family Lawyer: Attorney & Mediator, Lawyer replied 9 years ago
Attorney & Mediator
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Thank you Walter for your question.

In a nutshell you are correct. First the law does not give a minor the legal right to make adult decisions, so the child cannot be placed in a position to decide between both parents, only the parents or the court can decide any modification requests. A child of her age can state a preference, but it is only a preference that the judge only takes into consideration. The decision made is based on the totality of the circumstances for someone requesting a change in custody not on the child's sole decision. The law was written this way in order to place the adult burden on a child.

In addition and what is most important here, is that under the law of Ilinois the current custody order is presumed to be correct and not subject to modification unless the petitioner (the father) presents a change in circumstances which warrants the need for modification. So in order to even have a modification review hearing, he would first need legal standing to petition the court. A mere change in custody just because the child is older is insufficient for the court to change the custody orders. There needs to be a significant change in the child's environment to warrant the modification.

Below is the Illinois law on modification and what is required to have a hearing.


750 ILCS 5/610) (from Ch. 40, par. 610)
Sec. 610. Modification.
(a) Unless by stipulation of the parties or except as provided in subsection (a-5), no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.
(a-5) A motion to modify a custody judgment may be made at any time by a party who has been informed of the existence of facts requiring notice to be given under Section 609.5.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. The existence of facts requiring notice to be given under Section 609.5 of this Act shall be considered a change in circumstance. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.
(c) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.
(d) Notice under this Section shall be given as provided in subsections (c) and (d) of Section 601


You can review the laws on custody to access the codes in reference by this statute here.



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