If anyone wants to fight a custody order within two (2) years of its entry, Illinois requires the non-custodial parent to file a Petition to Modify Custody with an Affidavit alleging facts that give the court a "reason to belive" that the present environment seriously endangers the child or children. 750 ILCS 5/610(a).
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
Showing posts with label appeal. Show all posts
Showing posts with label appeal. Show all posts
Custody Decisions & Appeal: Marion County & Richland County, Illinois
The Illinois Supreme Court has ruled that when a custody decision is rendered, there is no waiting until all the issues are deciding if you want to appeal. Before this ruling, if the parties were arguing over a variety of issues, including custody, no one was allowed to appeal until the final decision was resolved. That meant that parties could be forced to go along with the court's decision for weeks, months, or even years until everything had been addressed in the court.
Now, when the court hands down a custody decision, you have 30 days to decide if you're going to live with it for the next two years, or if you're going to file an appeal.
Now, when the court hands down a custody decision, you have 30 days to decide if you're going to live with it for the next two years, or if you're going to file an appeal.
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