If you want for your children to come live with you after a divorce and your ex does not agree, you will need to file a motion for modification with the court. Under Illinois law, the timing and the reasons for asking for the change are critical.
At the time of the divorce, the Court will have entered a Judgment for Parental Allocation (or Parental Responsibilities award). This document set forth the legally binding rules of your individual divorce, as relating to your kids. It set forth rules about which parent will make major decisions and also laid out an “allocation of parenting time” dictating which parent the children would live with and spend time with as set forth by a schedule. It is what used to be known as residential custody. Assuming that your ex-wife or ex-husband was granted the majority of parenting time, you now want the children to come live with you for the majority of time. Here is what you need to know:
It is much more difficult to modify parenting time after a divorce than it is to obtain more parenting time from the outset. In the interests of stability for the children, the courts will generally not allow a modification until at least two years has passed since the Judgment was entered. In some cases, this two year date may be before your entire divorce was made final, if the Parental Allocation Judgment was entered first, as sometimes happens in Illinois.
Assuming that two years have passed, the critical question is whether or not there has been a substantial change in circumstances in either your life, your ex’s life, or the child’s life. If the court believes that this substantial life change would cause a change to parental allocation time to be in the child’s or children’s best interest, then the change should be made. If two years has passed and there has been ‘no substantial change’, then a court may modify the judgment if any of the following apply:
- The modification is minor (for example, this would not be switching who the kids live with Monday through Friday, because that is not minor);
- The court would not have approved the plan in the first place if it knew the circumstances at the time of the approval; or
- The modification is being made to reflect on paper what the arrangement has actually been, by agreement and without any objection on the part of either parent, for at least the past 6 months.
What if two years have not passed? There are exceptions to the two year waiting period and the modification must always be in the children’s best interest. The exceptions may apply in any of the following circumstances:
- The parents agree to the modification
- The parties sign something waiving the two year moratorium
- Both parents file cross petitions in court to modify the judgment
- One of the parents lives with or marries a sex offender
- The child’s present environment “seriously endangers” the child’s mental, moral or physical health (750 ILCS 5/610.5(a)) or
- The child’s present environment significantly impairs the child’s emotional development.
The final two is where things get complicated because the parents may completely disagree about whether or not the child or children are being harmed by the living arrangements. Presumably, the parent whose parenting time is trying to be reduced by the other parent, won’t believe that there is a problem or else he or she would not be subjecting the children to whatever it is that is going on. Occasionally, a parent will realize that there is a problem and that the child or children would be best served by moving in with the other parent, but that is obviously not always going to be the case. Depending on your own circumstances, you may want to discuss whatever is going on with your ex. You never know, the offer for you to take the children might come as a relief to him or her if they recognize that the children are not going to do well in the current arrangement. By way of example, I once represented a dad who had parenting time with his kids on the weekends. Shortly after the divorce, the mom developed a drug problem which got worse and worse to the point where she ended up in rehab. The mom voluntarily checked herself into rehab and left the kids with various family members on a rotating basis. She had the good sense to recognize that this was not a good situation for the children and that it would be a very long time before she was going to be capable of taking care of the kids, as she could not even take care of herself. As parents of two young children, the mother and father spoke honestly to one another and the mom agreed that a court would find that although two years had not passed, the father would be granted the change. She gave up on trying to fight the modification and went along with the change.
The bottom line is that if you want to change the parenting time that you have with your ex and your spouse does not agree to it, first figure out if two years has gone by or not. If so, the law is less strict but your circumstances must still meet the legal requirements set forth by the law under 735 ILCS 5/610. If less than two years, it will be much more difficult but just how difficult will be determined by the specific circumstances in your child’s life. Some people find success by attempting to work things out in mediation, which we can also help you with as long as we did not represent you in your divorce. A succesful mediation will be far less expensive than litigating the matter in court, will take less time, and may have a better outcome.