Change of Custody

The Basics: there are only two initial considerations for a change of custody after a custody order has been entered: before two years and after two years from the date of the last custody change. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) 750 ILCS 5/ has two separate and distinctly statutory tests as to whether you will achieve a change of custody:

Section 610 (a) provides: “Unless by stipulation of the parties or except as provided in subsection (a5), 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.”

There are a couple of lessons to be learned in a 610 (a) change of custody proceeding:

It is the standard for a change less than 2 years from the last order;

The standard is “endangerment of physical, mental, moral or emotional health” of the child

The standard of proof is “clear and convincing evidence” which is more than a preponderance of evidence and less than beyond a reasonable doubt

If the change is more than 2 years from the date of the last order then Section 610 (b) provides: “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”

Once you determine that the two years have passed, you are proceeding on a change of custody based on the “best interest of the child” and the standard of proof for the change is “clear and convincing evidence” you may wonder what is considered in the “best interest standard and once again there is a statutory provisions (the same as in the original custody determination, except the standard of the change is not a “preponderance” but “clear and convincing”.

Section 602 of the IMDMA provides the “best interest of the child test”

“(a) The court shall determine custody in accordance with the best interest of the child. The Court shall consider all the relevant factors including:

the wishes of the child's parent or parents to his custody

the wishes of the child as to his custodian

the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

the child's adjustment to his home, school and community;

the mental and physical health of all individuals involved;

the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;

the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

whether one of the parents is a sex offender; and

the terms of a parent's military familycare plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.