Modifying A Custody Order Within Two Years: Marion County & Clinton County Illinois

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.

Richland County & Marion County, Illinois: Custody Labels - It's ONLY a Label

Lots of parents get worked up about custody labels.  And that concern is completely understandable because it's your child.  In fact, clients often start out saying, "I'm not agreeing to anything but sole custody."  and most people believe that joint custody means that the parties have equal time with the children, and no one has to pay child support.

There are two levels of custody, and they can be mixed and matched.  Sole custody means that a parent has complete control over the children's education, medical treatment, and religion.  True joint custody means that both parents have the decision making power over the children's education, medical treatment, and religion. 

Keep in mind that the courts can only award what is labeled "joint custody" if the parents get along and communicate extremely well.  If the two of you testify that you do not get along, you cannot call your arrangement "joint custody."

I have clients who want what others would call "joint custody" but don't communicate well at all.  In that instance, there is no joint parenting agreement, but the terms of the "joint parenting" are written into the Marital Settlement Agreement without using that label.  The Marital Settlement Agreement will simply state that one parent is the residential custodian or primary custodian.  Then the agreement contains all the terms addressing how the parties will share decisions about the child(ren)'s medical care, religious upbringing, and educational needs.

By getting away from the term "joint custody," an agreement can be fashioned to address the wants and needs of each party when it comes to raising their child(ren).