Change of Child Custody? It is usually an uphill battle but will depend on the circumstances

Every now and then, an already divorced parent will ask the question "How can I change child custody"? In Illinois, it is much easier to fight for residential custody (where the children of divorce live) in the first place than to attempt to change it after a divorce.  Before divorce, "the best interests of the child" is the legal standard used in custody fights.  In the first two years after custody has already been decided, if a parent wants a change of custody, the standard becomes much stricter. No longer will the parent who wants custody have to convince the court that it would be in the child's best interest that custody be with him or her, but rather that the child or childrens' current environment may seriously endanger the mental, physical, mental, moral or emotional health of the children, as in the case of abuse. This stricter standard means that parents who have simply had a change of heart about wanting the kids to live with them is going to be out of luck. Courts do not favor a changes of custody because of the hardship that it can cause on children who have to, possibly once again, be uprooted from their lives or have to change routines to accommodate new custody arrangements. It is also presumed that the custody decision that was made initially was the correct one, rather, the arrangement was that which was going to best serve the children.

If less than two years have passed and you want to change your childrens' custody arrangement because there has since been a change which now puts the kids in danger (emotionally or physically), then you may have a shot although such cases can be emotionally and financially draining.  The court will likely require a custody evaluator - usually a social worker or psychologist - to meet with the family, conduct testing and write a report in what is called a 604b evaluation. The evaluator will be looking for issues that may be a sign of harm to the children. In addition to having a custody evaluator, the parties will likely each have their own lawyers and quite possibly a lawyer or guardian ad litem for the kids. It get expensive. 

If more than 2 years have passed, the road may be somewhat easier but a change in circumstances is still required. Remember, courts are reluctant to change custody arrangements. The change in circumstances must also relate to either the children or to the custodial parent, not the parent who is now seeking custody. For instance, if you decided to allow your ex to have custody of the children because you were not ready to have the children live with you but you are now in a better place (stable job, etc), that is not going to cut it.  An example of changed circumstances might be: 

  • neglect of the children
  • abuse of the children
  • a new live-in or step-parent whose presence negatively impacts the children's lives (ie: drug user, immoral behavior)
  • emotional or academic changes of the child, for the worse
  • etc.... 

Before going down the road for change of custody, be sure that you know what you may be up against. If your ex has filed for a change of custody, do not ignore what is going on in the courts. Speak to a lawyer who is familiar with changes in custody. Be sure to select an attorney who is willing to really listen to the facts of your case and what has gone on to bring about the possible change in child custody.  At O'Connor Cadiz Law, we will listen and provide sound advice after hearing all of the facts.  Call us at 630 250-8813 to schedule an appointment to discuss the possible change in your chidren's custody, if you have concerns.  


Carol O'Connor Cadiz
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Attorney & Owner at O'Connor Cadiz Law: Bankruptcy, Injury, Real Estate & Mediation