Modifying Parental Responsibility

by Wes Cowell; updated 24 January 2016

 

Parenting Plans (court-approved agreements) and Allocation Judgments (court ordered awards) may be modified, but the technical legalities can be difficult to navigate.  Need advice?  Call, leave your info, or schedule a consultation.

 

The Two Year Moratorium:   Your parental responsibility award may not be modified if it's less than two years old unless some circumstance allows an immediate modification of parenting responsibility.  Once parental responsibility -- whether in an agreed Parenting Plan or Allocation Judgment -- a moratorium goes into effect and its modificaiton is prohibited for two years.  The goal of the law is to achieve stability for the child.  There are, however, a lot of exceptions and loopholes to the moratorium.

 

At any time:  A Parental Responsibility award may be modified at any time:

  • if the parents agree to the modification (so long as their agreement serves the child's best interest) 750 ILCS 5/610.5 (a);

  • if the parties waive the two year moratorium by filing a joint stipulation waiving it 750 ILCS 5/610.5(a);

  • if the parties file cross-petitions to modify.  The moratorium is waived if the parties file cross petitions to modify parental responsibility award.  The cases refer to "joint custody agreements," but the legal analysis applies to the modern parental responsibility award.

 

Because each party filed a petition seeking sole custody, they effectively stipulated to terminate the joint-custody arrangement and agreed that a change in circumstances warranted awarding custody to only one of the parents. In re Marriage of Lasky, 176 Ill.2d 75, 81, 223 Ill.Dec. 27, 678 N.E.2d 1035, 1038 (1997); see also In re Marriage of Wycoff, 266 Ill.App.3d 408, 412, 203 Ill.Dec. 338, 639 N.E.2d 897, 901 (1994) (finding the change-in-circumstances clause allows a trial court to terminate a joint-custody agreement whenever it becomes apparent that the parents cannot cooperate in the child's best interests).  Therefore, once both parties moved to terminate the joint-custody agreement (indicating a change of circumstances had occurred), the trial court, pursuant to section 610(b) [since abolished but largely replaced by 750 ILCS 5/610.5(c)], had to terminate the joint-custody arrangement and make any modification that was in the child's best interests.

In re: Marriage of Spent, 342 Ill.App.3d 643, 796 N.E.2d 191 (4th Dist., 2003).

 

  • if one of the parents marries or lives with a sex offender 750 ILCS 5/610.5(b);

  • if the child's present environment "seriously endangers" the child's mental, moral, or physical health 750 ILCS 5/610.5(a);

  • if the child's present environment significantly impairs the child's emotional development 750 ILCS 5/610.5(a).

 

After Two Years | Substantial Change:  A parental responsibility award may be modified more than two years after the prior award if "a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child's best interest." (750 ILCS 5/610.5).

 

After Two Years | No Substantial Change:  A parental responsibility award may be modified more than two years after the prior award WITHOUT a showing of a substantial change in circumstances if:

  • the modification serves the child's best interest and it merely conforms the written agreement to the actual arrangment the parents have been using for the last six months (people do this ALL the time -- they get their court papers and then change the schdule a little, but don't bother to change the written agreement, then a year or so later one of them wants to un-change the way their working and go back to the technical terms of the agreement).  See, "Get it In Writing," below.  750 ILCS 5/610.5((c)(1);

  • it's just a minor modification, 750 ILCS 5/610.5(e)(2);

  • the court wouldn't have approved the plan in the first place if it knew of the circumstances at the time of the approval, 750 ILCS 5/610.5(e)(3).

 

Two Years Starting When?  "Rendering" vs. "Entry":  The Illinois Supreme Court has said that a divorce decree "is res judicata as to the facts which existed at the time it was entered" and that "(n)ew conditions must have arisen to warrant the court changing its prior custody determination."  Nye v. Nye (1952), 411 Ill. 408, 416, 105 N.E.2d 300, 304.  So, the entry of the final judgment certainly starts the clock ticking.  Note the use of the word "entered" in the Nye decision.  When a judge says from the bench "Okay, I'm allocating parental responsibility as follows . . . "  we say that the opinion has been "rendered."  "Rendering" means the words were spoken by the judge's lips from the bench in open court.  That's not the same as "entry."  A Judgment (or order) isn't "entered" until it is reduced to writing and signed by the judge or stamped by the judge's clerk or is somehow otherwise entered into the court's record.  The judge renders his opinions and then the lawyers write it out and have it entered.  A problem arises when lawyers allow a lag to slip in between the rendering and the entry of the judge's opinon.  In such cases, its the later "entry" date that counts; not the rendering date.

 

Parenting Plans Entered Before the Divorce is Final Start the Clock:  In one noted case, the court reasoned that a modification request could be brought only thirteen months after the final divorce judgment.  Just a year after the divorce was finalized, the father went back to court to modify custody and was successful.  In re:  Marriage of Marsh, 343 Ill. App. 3d 1235, 279 Ill.Dec. 234, 799 N.E.2d 1037 (4th Dist., 2003).  A “permanent” custody judgment was entered in October, 2001.  The final judgment was entered September, 2002 addressing supportand visitation.  The appellate court said:

 

“We hold that Section 610’s two year proscription on Motions to Modify Custody, absent an affidavit showing serious endangerment, starts to run when the trial court enters a permanent custody order, regardless of whether such order is entered contemporaneously to a final judgment of dissolution or earlier in the dissolution proceedings."

 In re:  Marriage of Marsh, 343 Ill. App. 3d 1235, 279 Ill.Dec. 234, 799 N.E.2d 1037 (4th Dist., 2003).

  

Modification: Denials Don't Reset the Clock  The technical definition of a “parental responsibility allocation award” is strict enough that some court orders that look like it, walk like it, and talk like it . . . still fail to satisfy the definition.  If a court order addressing parental responsibilities does not qualify as  “allocaiton award,"  it cannot reset the two-year moratorium clock.  Illinois' old "custody law" offers guidance.  In In re: Marriage of Spent, 342 Ill.App.3d 643, 796 N.E.2d 191 (4th Dist., 2003) the couple divorced in 2001, agreeing to joint custody.  There was a lot of post-decretal fighting between the parents.  In 2002, the mother filed a “Petition to Terminate Joint Custody.”   That request was heard (not dismissed for violating the two year moratorium.) and denied.  In 2003, the father filed a “Motion to Modify Custody.”  That was heard and allowed.  The mother appealed and argued that the 2002 denial of her Petition to Terminate Joint Custody was a “custody determination” and, therefore, the father’s Petition to Modify Custody should have been dismissed as having been filed within two years of her Motion.  The Appellate Court specifically held that the denial of a Petition to Modify Custody is not, in and of itself, a “custody determination.”  See, also, IDPA ex rel. Davis v. Brewer, 183 Ill.2d 540, 702 N.E.2d 563, 234 Ill. Dec. 223 (1998).

 

 Non-Modifiable Parental Responsibility Awards:  Parental Responsibility awards may not be made non-modifiable nor self-executing.  Parties sometimes agree to make custody "non-modifiable" or they'll include self-executing language, like "If Mom moves out of the child's curent school district, then the child shall automatically go live with Dad."  Such language is meaningless -- the court will not be bound by the parties' restrictions and the court will always (that's ALWAYS) modify parental responsibilities to serve the child's best interests . . . agreements be damned.  

 

Get it in Writing:  When considering a modification of a parenting award (whether a parenting plan or an allocation judgment), courts must presume that the existing award is in the child’s best interest.  In one (pre-2016)noted case, the parties shared joint custody but agreed the mother would be the “residential custodian.”  Six years later they agreed that the child should go live with the father and that's what they did.  Much later, when the father went to court to change the custody order, the mother opposed the change (presumably because it would mean that she would have to start paying child support).  The original paperwork said Mom should have custody but the day-to-day arrangement by which the parties had been living for years was the opposite.  The trial court ignored teh required presumption (that custody was best placed with Mom, because that's what the papers said) and sided with Dad. The father’s victory was short lived – the modification was reversed on appeal and the mother retained custody.  In re:  Marriage of Childers, 305 Ill.App.3d 70, 711 N.E.2d 456,  (2d Dist., 1999).   Always work with a lawyer and always get it in writing.

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