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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2438
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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How would I begin to draft a petition to change physical

Customer Question

How would I begin to draft a petition to change physical custody
Submitted: 11 months ago.
Category: Family Law
Expert:  RobertJDFL replied 11 months ago.

Thank you for using Just Answer. I look forward to helping you.

Under normal circumstances, 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).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 only one parent wishes to modify the custody order, he or she must prove to the court by clear and convincing evidence that a change has occurred since the original order and that a change in custody or parenting time is in the best interest of the child.

You can find sample forms and instructions on how to fill out the petition and other necessary forms here.

If you need clarification about my answer or additional information, please use the SEND or REPLY button to continue our conversation. Your satisfaction is my goal and I am here to help!

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Customer: replied 11 months ago.
what if the other Parent default
Expert:  RobertJDFL replied 11 months ago.

Do you mean what if the other parent doesn't answer the petition to modify custody?

Customer: replied 11 months ago.
Expert:  RobertJDFL replied 11 months ago.

In general, before a default can be entered regarding any issue with children the court has determine that the proposed order is in the best interest of the children.

If the opposing party is out of time to respond, then you could present a default to the judge. However, it is likely the court will require that a hearing be set and opposing party provided reasonable notice of the hearing.

Typically, if the opposing party is not present, the judge is going to grant the request if it is in the in best interest of the minor child.

Customer: replied 11 months ago.
my ex lives in Tempe Arizona I in Elgin Illinois I have a feeling that she is going to default the the court date of 8-15-16
Expert:  RobertJDFL replied 11 months ago.

You can present a default order seeking what you want, but it doesn't guarantee a judge will sign it. They may, if they believe that what you are requesting is in the best interest of the child.

Customer: replied 11 months ago.
If that happens how would I word that petition?
Expert:  RobertJDFL replied 11 months ago.

It's actually not a petition, it's an Order (because you're asking that the judge order the modification).

I can't answer specifically for you how you would word it because I'm not at all familiar with your case. However, in the link I initially gave you with the forms, there is a sample Order Modifying Custody. I would use that as your sample and modify it to fit your specific needs.

Customer: replied 11 months ago.
Can my ex-wife come pick up my son who's with me for visitation even if there is a case pending at the moment
Expert:  RobertJDFL replied 11 months ago.

The current custody order remains in place while a case is pending, so if it allows her visitation, then yes, she is entitled.

Customer: replied 11 months ago.
Can I get a order from keeping her from doing this until my court date
Expert:  RobertJDFL replied 11 months ago.

Possibly, yes. You'd have to file a motion with the court, and I would say there would have to be some significant risk of harm or danger to the child to outright deny the other parent visitation, because that is almost never done.

Customer: replied 11 months ago.
Not my ex-wife she has physical custody of my son I get him on summer vacation for visitation the order states that he has to be back after so many weeks but the thing is she called me a few days ago and told me that she has to work nights and for me to take care of Josh and enrolling in school here which is already enrolled in school and she but now she is insisting on a letter stating that he will be back mid-January I do not feel comfortable doing that and all the lawyers I talked to said don't do that don't send her a letter but she just text me yesterday said since she didn't doesn't have the letter she wants him back in Arizona but the thing is if he goes back to Arizona there is no one to watch him and she will send him to Mexico which I'm not comfortable with that either I went down to the court and file the motion for change of custody so he could go to school here just like she requested but now she wants me back in the Arizona so there is already a case pending right now so can she come and pick up my son while the case is pending or knowing her she will probably call the cops and send them over to my house but they cannot pick up this child for her can they
Expert:  RobertJDFL replied 11 months ago.

If the order currently in place says you have to return him, yes, you do have to do that. If you don't, and the court still hasn't made a ruling on the modification, she could actually a contempt motion against you.

Would the police just show up to your door and take your son? I can't say for certain, unfortunately. That really depends on the police department. Some will say yes, because she has a court order, others will say no they won't get involved.

Customer: replied 11 months ago.
what now I already filed a motion to transfer my case from Kane County to Boone County were I live currently also I filed a change of custody at the same time.
I have a court date of 8-15-16 and I served her with the petition already and if she doesn't answer a default order will be put in against her. So I looked at the link for the forms and would I fill one those forms out?
Customer: replied 11 months ago.
She she called me recently and told me that her place of employment had put her on the night shift from 12am - 830 am and she said she has no way of watching joshua or even taking him to school because of her schedule. She asked me to enroll Josh in school here which he is enrolled already and she wanted a letter stating that Josh would be back mid school year but all the lawyers I talked to said not to sign anything that says he go back mid school year
Customer: replied 11 months ago.
she have a letter stating that
So she wants him Back just so she can send him to Mexico to stay with her mom for a few month but that is not in joshuas best interest
Customer: replied 11 months ago.
U there?
Expert:  RobertJDFL replied 11 months ago.

I'm sorry, I had to step out for awhile and likely will not be online for several more hours this evening. To keep you from waiting any longer, I am going to opt out of the question so that the question goes back on the open list and other experts can pick it up and assist you without keeping you. They'll be able to see everything that has been typed, so you won't have to repeat yourself. You'll be notified when a new expert answers, but please don't reply back to me as the system will send the question back to me which will keep other experts from seeing it.

Sorry for the inconvenience, and best regards.

Expert:  S. Kincaid replied 11 months ago.

Are all these communications in writing? When are you supposed to return Joshua?

Customer: replied 11 months ago.
Should I file out this? IF IM going to change custody?STATE OF ILLINOIS
_____________ COUNTY
_____________________, Plaintiff )
and ) No. ____-- __ --____
_____________________, Defendant )
I, ________________________________, without the assistance of an attorney, ask this
Court to modify an existing order of custody. In support of my Petition, I state the following items
are true to the best of my knowledge:
1. This Court has jurisdiction over the subject matter and the parties.
2. I am ____ years old; my address is: ____________________________________; I live
in ____________ County; and I have lived in Illinois for at least 90 days before I filed this Petition.
3. The other parent's name is ***** ***** is _____ years old;
his/her address is:___________________________________; and he/she is __ is not __ a
resident of Illinois.
4. On __________________, 20 ___ an order was entered by this Court (see attached)
regarding custody and visitation.
5. Since the entry of this Order, there have been substantial changes in circumstances
which justify the immediate modification of the child custody, visitation, and child support order
and which are described in the attached affidavit including:____________________________
Expert:  S. Kincaid replied 11 months ago.

Where did you find that form?

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