During your divorce, you agreed to allow your spouse to have custody of your children. Now, he or she has a live-in partner who you believe mistreats them. Or maybe you simply feel your former spouse is too strict, or not strict enough. At this point, you think your children would be better off with you.
Can you change your custody order? What is the procedure?
Before petitioning the court for a change in custody, we must determine whether at least two years have elapsed since the Judgment awarded custody to the other spouse. If it has been less than two years, the Court will not change custody unless there has been an extraordinary change in circumstances. According to Illinois law, you must show by clear and convincing evidence that the "child’s present environment may endanger seriously his physical, mental, moral or emotional health." (750 ILCS 5/610.) Is the new partner abusing your child? Is your ex-spouse doing drugs or neglecting your children in some serious way?
An exception to the two year requirement is if your former spouse intends to move in or marry a sex offender. A motion to change custody under those circumstances can be made at any time. (750 ILCS 5/609.5.)
If the Judgment is more than two years old, then you need only show a change in circumstances. For example, your child is now an adolescent and needs to live with the same sex parent, or your child doesn’t get along with a new stepparent or stepsibling.
To start a change in custody proceeding, you must file a petition or motion requesting the change with the Court. If you and your former spouse agree on the change, the Court may enter an order reflecting your agreement. If not, your motion must be served on your ex-spouse and your ex-spouse will be given time to respond. Most likely, the parties would ask for some discovery about the matter. Discovery is the opportunity to obtain evidence from the other parent or a third party. You may wish to obtain school records or medical records to document your child’s situation. The parent who wants to keep custody might ask for information about your activities.
The court may next appoint a child representative. This is an attorney who advocates for the best interests of your child. A child custody expert may also be appointed. The child custody expert usually has a psychological or social work background. The expert might meet with both parents and observe them with the child. They may require psychological testing and may issue a recommendation about the change in custody.
Often, parents will come to an agreement after the expert issues their report. If not, you will have an opportunity to present your side of the story at a hearing before a judge. The judge will then order the change of custody or deny your request. If your request is denied, you can consider the possibility of appealing the judge’s decision.
While it is difficult to set a time table, most child custody proceedings resolve in six months to a year.
If you have questions about this or another domestic relations situation, please contact Zachary W. Williams at 1-312-981-0851 or email to: zwwlawyer@gmail.com
Source: http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt+VI&ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000
