Seeking a Change in Child Custody

 Posted on August 15, 2014 in Child Custody

Children often suffer when their parents separate or divorce, especially if they find themselves in the middle of a heated custody battle; or, even worse, if they are caught in a second battle after custody has already been “settled.”

A court initially decides child custody based on the child’s best interests. While that court order may be modified, the petitioner must prove that either the child’s or the custodial parent’s circumstances have changed in a way that justifies uprooting the child. (A re-evaluation of the child’s best interests alone is not enough to justify modification.) This is not always easy to prove. In fact, it is easier to win a custody battle in the first place than it is to convince a judge to grant a custody transfer, because Illinois law is biased in favor of the initial custody determination. In other words, the law prefers stability for the child instead of continuous upheaval.

A court might grant the petitioner’s request to modify child custody if one of the following circumstances is true:

• The custodial parent exposed the child to immoral conduct;
• The custodial parent neglected or abused the child;
• The child’s formerly stable home environment has become unstable due to the custodial parent’s behavior (examples include excessive drinking or incarceration);
• The child has developed social or psychological problems from his/her current environment;
• The child has developed significant health problems due to his/her current environment; or
• The child’s school performance has deteriorated significantly.

Note that a positive change in the non-custodial parent’s circumstances by itself is insufficient to merit a custody modification.

Removal Does Not Amount to a Custody Modification

Illinois law requires the custodial parent to seek court permission before permanently removing the child from the state (such as accepting a job in another state and moving there with the child). Keep in mind that a removal petition is not the same as a petition for custody modification. Furthermore, while wrongful removal is illegal, it typically does not justify a change in custody without additional evidence of parental wrongdoing or unfitness.

A court will consider a removal petition in light of the best interests of the child, and not according to what the custodial parent wants. Factors that will inform the court’s decision include:

• Whether removal would affect the non-custodial parent’s visitation rights and how, if visitation became more infrequent, that would affect the child’s relationship with that parent;
• The custodial parent’s motives and whether the move was precipitated by legitimate reasons, or is an attempt to frustrate the non-custodial parent’s visitation rights; and
• Whether the move would enhance the child’s and the custodial parent’s quality of life (for example, if the parent found a new, better-paying job).

Contact Us Today

 Our family law attorneys have experience handling every child custody issue imaginable. If you are in the throes of an initial custody battle, we can help. If your family’s circumstances necessitate a custody modification, we can help. And if you are either seeking or fighting against removal, we can help. Contact our Illinois family law attorneys today for a consultation. We can assist those in the St. Charles area.