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CHANGE OF CHILD CUSTODY |
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Negotiations for my divorce have been going on for a long time, but now it looks like we can settle all the issues except child custody. Should I settle the case and let my wife have custody and come back later to seek custody? |
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Is there a special rule that applies to a change of custody within two years of the original grant of custody? |
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Isn't child custody always decided on the basis of what is in the best interest of the child? |
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If I can prove that it would be in the best interest of my child for custody to be transferred, will the court allow the transfer? |
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Does the law have a bias in favor of the custodial parent and against the non-custodial parent? |
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What facts would be sufficient to show a change of circumstances sufficient to bring about a change of custody? |
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Is failure to allow visitation, or a custodian alienating a child from the other parent a basis for a transfer of custody? |
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I have "joint custody" and but my ex-spouse has the residential custody. Does joint custody give me a leg up in obtaining a transfer of residential, or primary, custody? |
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Is removal of a child from the State of Illinois without permission of the court a basis for a transfer of custody? |
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I was a very young mother when I had my child, and we were divorced shortly after the birth. My husband was older and more mature and in the divorce I allowed him to have the child. It is now five years later. I have matured, settled down, and I am now in a stable marriage with a mature man. We have financial security. Won't the court give me back my child now? |
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Isn't it a change of circumstances that my (non-custodial parent) situation has greatly improved? |
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Is removal of a child from the State of Illinois without permission of the court a basis for transfer of custody? |
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If a parent applies for a change of custody, and at that time there is an arrearage in child support or maintenance, may the court consider evidence of the arrearage in relation to the change of custody? |
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Will the court transfer custody because the custodial parent has a live-in companion? |
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I am divorced and have custody of the children. I am involved in a committed relationship with a man. May I have him move in with me and the children? |
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Can the custodian being involved in a lesbian or homosexual lifestyle be a basis for transfer of custody? |
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What could other causes be for a transfer of custody? |
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What are the procedures involved in change of custody litigation? |
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How much will a change of custody trial cost? |
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| Q: |
Negotiations for my divorce have been going on for a long time, but now it looks like we can settle all the issues except child custody. Should I settle the case and let my wife have custody and come back later to seek custody? |
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No, definitely not. In initial divorce and paternity proceedings the parties start even in regards to child custody. In proceedings to change (modify) child custody, the law has a bias in favor of continuing the status quo. It is very much more difficult to bring about a change of custody than to win a custody case in the first place. |
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| Q: |
Is there a special rule that applies to a change of custody within two years of the original grant of custody? |
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Yes. The law's bias is in favor of stability for the child. During the first two years after a custody judgment, the court will not allow you to file a petition for a change of custody, unless you establish, by affidavits, that the child's present environment may seriously endanger the child's physical, mental, moral or emotional health. This is difficult to establish. You must virtually establish an emergency situation. |
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| Q: |
Isn't child custody always decided on the basis of what is in the best interest of the child? |
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No. The first question in a transfer of custody is not what is in the best interest of the children, but whether there has been a change of circumstances since the original custody order was entered.
Look at it this way. After child custody is determined by a court order in divorce or paternity proceedings on the basis if the best interest if the child, the judge, in effect, states, "That's it. I determined the custody of the child once and that was done on the basis of what is in the best interest of the child. (And this holds true whether the judge's determination was based on a trial, or the parties' agreement.) Now, if you want custody changed, you are going to have to show me (the judge) there has been a change of circumstances." |
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| Q: |
If I can prove that it would be in the best interest of my child for custody to be transferred, will the court allow the transfer? |
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No, not merely on the basis of the best interest of the child. The best interest of the child is the basis upon which the court grants custody initially, but in a change of custody proceedings you must prove that since the original custody judgment was entered a change has occurred in the curcumstances of the child or the custodian, and thereafter you must also prove that a change of custody is necessary to serve the best interest of the child. You must prove this by "clear and convincing evidence." Ordinarily proof must be by a "preponderance of the evidence." Clear and convincing evidence is a higher standard than a preponderance of the evidence. |
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| Q: |
Does the law have a bias in favor of the custodial parent and against the non-custodial parent? |
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Yes. It is a strong bias. The law has a bias in favor of the child's life being stable. |
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| Q: |
What facts would be sufficient to show a change of circumstances sufficient to bring about a change of custody? |
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Examples are: a significant drop in the child's school performance; significant health problems due to the custodial parent's neglect; the development of significant social/psychological problems by the child; substantial neglect of the child by the custodial parent, such as leaving the child home alone, neglecting the child so the child becomes injured; exposing the child to what the judge may consider to be immoral conduct, like having a live-in significant other. |
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| Q: |
Is failure to allow visitation, or a custodian alienating a child from the other parent a basis for a transfer of custody? |
| A: |
No, not usually. Custody of a child will not be transferred in order to punish the custodial parent. There have, however, been cases where the disallowance of visitation and alienation was so outrageous and so "obdurate and contumacious" that custody has been transferred. |
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| Q: |
I have "joint custody" and but my ex-spouse has the residential custody. Does joint custody give me a leg up in obtaining a transfer of residential, or primary, custody? |
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No. Joint custody does not give the non-residential parent any advantage in change of custody proceedings. |
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| Q: |
Is removal of a child from the State of Illinois without permission of the court a basis for a transfer of custody? |
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No, not usually. The rule is the same as for not allowing visitation. Wrongful removal of a child, standing alone, does not constitute changed circumstances sufficient to support a change of custody. |
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| Q: |
I was a very young mother when I had my child, and we were divorced shortly after the birth. My husband was older and more mature and in the divorce I allowed him to have the child. It is now five years later. I have matured, settled down, and I am now in a stable marriage with a mature man. We have financial security. Won't the court give me back my child now? |
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No. For a transfer of custody to occur the law requires "that a change has occurred in the circumstances of the child or custodian." A change of circumstances cannot be based only on evidence of the noncustodial parent's improved change of circumstances. |
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| Q: |
Isn't it a change of circumstances that my (non-custodial parent) situation has greatly improved? |
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No. A change of circumstances on the part of the non-custodial parent does not count. The change must be on the part of the child, or the custodial parent.
Take, for example, a mother who married early, had a child and divorced in her early 20's. At the time of the divorce she did not want to be burdened with the child. Five or six years later she has matured, made a fortunate new marriage and is ready to settle down and have custody of her child. These changes on the part of the mother are not a "change of circumstances" the judge will not consider if she petitions for a change of custody. The change has to be not on her part, but on the part of the custodial parent and the child. |
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| Q |
Is removal of a child from the State of Illinois without permission of the court a basis for a transfer of custody? |
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No, not usually. The rule is the same as for now allowing visitation. Wrongful removal of a child, standing alone, does not usually constitute changed circumstances sufficient to support a change of custody, but it could, and you would stand a decent chance of having the judge order the custodial parent to return the child to Illinois. |
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| Q: |
If a parent applies for a change of custody, and at that time there is an arrearage in child support or maintenance, may the court consider evidence of the arrearage in relation to the change of custody? |
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Yes. Although nonpayment would not necessarily bar a transfer of custody, the court may consider nonpayment. |
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| Q: |
Will the court transfer custody because the custodial parent has a live-in companion? |
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Maybe. No clear cut rule can be discerned from the Illinois Supreme Court or the appellate courts. Courts, especially trial courts, seem to have an inclination to conservative morality in deciding these cases, but they are faced with a statute which states that the conduct of a custodial parent that does not adversely affect a child is not to be considered in the custody determination. Thus the more evidence there is that the live-in arrangement has an adverse affect on the child, the stronger the transfer of custody case. Of course a way for the custodial parent to dodge the bullet is to marry the live-in. Live-in situations are now so common the courts have become tolerant. If however, you can show an adverse impact on the child, or that there is a revolving door of lovers, you have a decent shot at changing custody. |
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| Q: |
I am divorced and have custody of the children. I am involved in a committed relationship with a man. May I have him move in with me and the children? |
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No, it is not advisable. While it is not black letter law that this will give the father ammunition for a transfer of custody, it is certainly fodder for the cannon and should be avoided. What you do at times, such as weekends, when you do not have the children is your business. |
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| Q: |
Can the custodian being involved in a lesbian or homosexual lifestyle be a basis for transfer of custody? |
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Maybe. The same basic rules are applied as to a heterosexual relationship. The fact of a homosexual or lesbian lifestyle may be introduced into evidence and is relevant in a custody decision, but it seems that the rule requiring an affect on the child is liberally applied in gay and lesbian custody cases. In one of the appellate court cases dealing with a lesbian relationship, the argument for a change of custody was based on the testimony of a clinical psychologist that the children might be harassed because of the mother's lesbian relationship. This argument was rejected because there was no actual evidence the children had experienced harassment. |
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| Q: |
What could other causes be for a transfer of custody? |
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Serious abuse of a child, whether physical or sexual, may be grounds for a transfer of custody. The instability of the custodian is frequently a significant (but not sole) factor in allowing a transfer of custody. Imprisonment of a custodian is an obvious change of circumstances. Smoking by the custodial parent is now being raised in change of custody proceedings. In the Illinois appellate court opinion which addressed the smoking issue the custodian's smoking did not result in a change of custody because it was not proved that the children's asthmatic conditions were caused by the smoking and the mother testified that she no longer smoked in the residence, but because the Illinois legislature recently barred smoking in all enclosed public places the courts will probably become more open to ruling against a parent who smokes in a confined area with the child present. |
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| Q: |
What are the procedures involved in change of custody court proceedings? |
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The law requires you to jump through many hoops in a change of custody proceeding. After the filing of a petition for modification of custody, first the rules of most courts require that the issue be mediated in the hope that the mediator can bring the parties around to an agreement. Usually the court will order an investigation/evaluation of the issue of custody, with recommendations to be made to the judge. These studies usually include psychological testing of the parents and may include a psychological evaluation of the parents and often also include psychological evaluation of the children. Sometimes the judge will appoint a lawyer to represent the child. The final hoop before trial is a pre-trial conference in which the judge, after hearing the positions of the parties, by their lawyers, as to what will be proved in trial, will attempt to bring about a settlement by informing the lawyers what the judge's ruling may be if the evidence at trial is as it was represented it would be at the pre-trial conference. The judge's pre-trial conference statements are not the decision in the case, but the judge's comments deserve serious consideration. |
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| Q: |
How much will a change of custody trial cost? |
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A lot. The reason is that change of custody proceedings are labor intense for the lawyers. In custody matters lawyers charge for their work on the basis of time. |
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