Most Illinois residents who have endured the emotional roller coaster of a divorce often assume that the judge’s signature on the final order and decree will end the turmoil of worrying about child custody and related matters.
Unfortunately, life does not always proceed in a straight line. Unexpected events such as an illness or accident, loss of a job, an offer of a better job for one parent in another location can often upset the relationships that were defined in the court’s final child custody order.
Under what circumstances can the court’s order be modified? The answer is found in Illinois statutes and subsequent court decisions.
Two types of custody
Illinois law prescribes two types of child custody: legal and residential.
Legal custody gives the custodial parent the power to make certain decisions about the child’s life, such as education, choice of religious faith, and medical treatments. Residential custody gives the custodial parent the right to determine where the child lives.
Most motions seeking modification of a custody decree are aimed at residential custody and are the outcome of a change in the circumstances of one or both parents.
Reasons for modifying child custody
The principal rule that a judge must follow in considering a motion to modify a child custody order is first to determine whether the circumstances of the child’s existence have undergone a material change since the last order was issued.
The next rule, perhaps even more important than the first, is whether the best interests of the child will be better served by the granting or denial of the motion. Specific factors under these general rules include:
- Mental or physical endangerment of the child in his or her current environment
- Psychological and social issues that adversely affect the current living situation
- The custodial parent is living with a convicted sex offender
- Evidence of sexual or physical abuse
- Imprisonment of the custodial parent
- A decline in the child’s educational functioning
- Any other factor that, in the opinion of the judge hearing the motion, will contribute to the well-being of the child
The parent requesting the modification bears the burden of proving the factors that will support the requested modification.