Changing Child Custody by Agreement

Changing Child Custody by Agreement

Last updated: March 2011

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Custody is a legal word that means which parent has physical and legal control of a child.A custody order is a judge’s written explanation of the custody decision. The type of custody you have determines: Which parent will have the child living with them most of the time; How major decisions about the child will be made;Which parent will have to pay child support; andWhich parent will have visitation with the child. If you want to change the existing order, you will need to file your Joint Motion to Modify Custody in the same county where the original court order of custody was entered.If neither parent nor the child still lives in this county, it may be possible to transfer the case to the county where the child resides. However, you should consult with a lawyer before trying to do this. Click on words that appear like 'this' to learn what these words meanWhat types of cases include decisions about custody? Child custody decisions are usually part of a bigger case. A decision about child custody might be part of any of these types of cases:DivorceLegal separationPaternity case, meaning an unmarried parent is asking the court to confirm who the child’s father isA child support case brought by one parent asking for child support payments from the other parentThe State of Illinois asking for child support payments for an unmarried parent to better provide for their childAn Order of Protection case where one parent asks the court for protection from domestic violence If you and the other parent took part in one of these cases, a custody order may be a part of the court file. This file is kept by the Circuit Clerk’s office in the county where the case took place. What is the difference between joint custody and sole custody? In Illinois, there are two types of custody - joint custody or sole custody. The main difference between joint custody and sole custody is who makes the decisions about the child’s upbringing. Sole custody means that one parent has the court’s approval to make major decisions about their child. These decisions include:EducationHealth careEmotional careDifferences between right and wrong Religious decisionsA parent who has sole custody is known as the “custodial” parent. If you’re a parent with sole custody, your child lives with you and the other parent has visitation with the child. You can choose whether to discuss major decisions with the other parent and whether to make those decisions about your child together. Joint custody means that both parents have agreed to make major decisions about their child together. Parents with joint custody have agreed to talk to each other and cooperate with each other. Joint custody parents both have the court’s approval to make decisions about their child. Major decisions the parents will share include:EducationHealth careEmotional careDifferences between right and wrong Religious decisionsParents with joint custody usually sign a Joint Parenting Agreement that explains how they will work together. Although parents with joint custody have agreed to make decisions about their child together, the child will usually live with one parent most of the time. The other parent will have visitation with the child. The parent that the child lives with is known as the “residential” parent. Parents with joint custody have to talk with each other about major decisions and make decisions together. Does joint custody mean the child lives with both parents? No. Joint custody does not always mean that a child lives with both parents. Most of the time, joint custody refers to how decisions will be made about a child. If parents agree to raise their child jointly, they create a schedule showing when the child will be with each parent. This schedule usually includes specific dates, times and events. An example of a schedule could be: the child will live with the mother during the school year and with the father during the summer break; the child will be with the mother on Mother’s Day and for the mother’s birthday, and with the father on Father’s Day and the father’s birthday. I already have a custody order for my child, but the other parent and I have agreed to change it. What is my first step? The first thing you should do is look at your existing custody order. You will need information from the existing custody order to be able to ask the courts to change custody. The existing custody order is important because it tells you and the judge:The date the custody order was entered by the courtThe type of custody arrangement between you and the other parentThe case number for the case where custody was decidedThe custody order may also tell you and the judge:A parent’s visitation schedule with the childThe parent who pays child support How often and how much child support is to be paidDo child support payments change if we change custody? Child support obligations will change if the residential parent is changing from one parent to the other. To change child support, you will be required to file extra forms when you modify your custody. For more information, see Changing Child Support Payments in the "Related Articles" section of this guide. How do I get a copy of my custody order? To get a copy of your custody order, you can search the case file at the Circuit Clerk's office. This file is kept by the Circuit Clerk’s office in the county where the case took place. For location and contact information, visit the Illinois Courts' website. Keep in mind that your custody order may be part of a case filed between you and the other parent in the past. For married or divorced parents this case might have been:A divorceA legal separationA request for child, orAn order of protection asking the court to stop domestic abuseFor unmarried parents this case might have been:A paternity caseAn order of protection asking the court to stop domestic abuse A request for child support filed by one parentA request for child support filed by the State of IllinoisA request for custody asking the court to state who has custody of a child when the parents have signed a Voluntary Acknowledgment of Paternity (VAP)An administrative proceeding asking for child support payments filed through the Illinois Department of Healthcare and Family Services (IDHS)Sometimes the original custody order is not easy to find. Your court file may not include a document titled “custody order.” A custody decision may be part of another court case file. For example, a custody decision is part of a “Judgment for Dissolution of Marriage” in a divorce case. If the father’s of a child was determined by a court, a custody decision may be part of a Paternity Order.I have my custody order. What do I need to do next? Since you and the other parent are in agreement, you must ask the court to change the existing custody order. You do this by filing a Joint Motion to Modify Custody and Visitation. You will need to file your motion using the same case number of the case where custody was previously decided by the court. The case number appears at the top of the first page of the custody order. For example, a divorced parent who wants to change custody would file their Joint Motion to Modify Custody under the same case number as their divorce case.You will need to file your Joint Motion to Modify Custody in the same county where the original court order of custody was entered. If neither parent nor the child still lives in this county, it may be possible to transfer the case to the county where the child resides. However, you should consult with a lawyer before trying to do this.If you are unsure about where to file your motion, you may want to talk with a lawyer. You may search for a lawyer by looking at the "Find Legal Help" section. When can I file a Joint Motion to Modify Custody? You can file a Joint Motion to Modify Custody and Visitation at any time. How do I know if the other parent and I agree about the changes to custody? An agreement means both parents must understand and agree with all the proposed changes. A change in custody may mean that: The child moves in with a different parentA different parent is making the day-to-day decisions about the childA different parent has to pay child supportThe child’s visitation time with a parent is decreasedQuestions about how the child is raised are decided differently Be sure you understand how any changes in custody will affect your rights and duties as a parent. You must file court papers to ask the judge to change custody even if you and the other parent agree. The judge must approve your agreement and grant your requested changes to custody for the change to occur legally. Please use the Joint Motion to Modify Custody and Visitation in the "Forms/Letters" section to change your custody by agreement.What do I write about in the Joint Motion to Modify Custody? When you write your motion remember:Your motion tells the judge what you want and why you want it. So, take your time and write your motion carefully;The judge can only give you what you ask for in your motion. Ask yourself what you would like to happen and include it in your Motion. If you forget to ask for something in your motion the judge cannot give it to you. Be sure to ask for everything you want. If you leave something out you will need to file another motion. The judge does not know your particular case. You will need to include some dates and facts about previous court orders involving you and the other parent;Your motion should give the judge a detailed explanation about the events that caused you and the other parent to want a change in custody. This will help the judge understand your situation;The judge will need your existing custody order to help decide your motion You must attach a copy of the Custody Order you are trying to change to your motion. Remember that questions about child custody are usually part of a bigger reason someone filed a court case. If you’ve filed a lawsuit asking for a divorce, legal separation, order of protection, child support payments, custody, or establishing legal paternity of a child, your custody order may be included in another order entered in that case. Just make a copy of that order and attach it to your Joint Motion to Modify Custody and Visitation.What is an Affidavit? The Affidavit is the form you will use to state the reasons why you want to change custody. When you sign the Affidavit, you are also taking an oath that swears what you wrote in your court papers is true. A signed Affidavit tells the judge that all the facts in the papers are true. Make sure everything you wrote in your Joint Motion to Modify Custody matches everything you wrote in the Affidavit. Have the other parent complete and sign their own Affidavit. File both Affidavits at the same time you file your Joint Motion. Prepare the Necessary Forms You must fill out 3 forms: Joint Motion to Modify Custody Affidavit (one affidavit for each parent)Notice of MotionRemember: The Joint Motion to Modify Custody is very important and needs to be completed carefully: Include as many details as possibleIf you forget to ask for it in your motion the court cannot give it to youAlways attach a copy of the Custody Order you are trying to change to your motionIf the custody order is part of another order like a Judgment for Dissolution of Marriage or Paternity order, attach a copy of that orderPrepare Child Support Forms, if Necessary If child support is changing, you should also complete another set of forms.Generally, the parents’ child support obligations will change if the residential parent is changing from one parent to the other. To find these forms, go to "Changing Child Support Payments" in the "Related Articles" section of this guide.In the "Forms/Letters" section of the "Changing Child Support Payments" guide me, you will find the "Child Support Modification" automated document. It is an online program that will help you create the following forms that you will need to change child support:Petition for Modification of Child SupportUniform Order for SupportChild Support Data SheetNotice to WithholdFile your Forms File your motion and Affidavits with the clerk's office is at 28 North Clark, 2nd floor. The clerk will stamp them and give you a court date.Remember: You need the original motion plus 2 copies to file with the Circuit Clerk. The Circuit Clerk keeps the original. You must give one copy to the other parent. You need to keep one copy for yourself. Your court date will be at 50 W. Washington, Concourse Level CL-24. You need to write this court date and location on the Notice of Motion. Notify the Other Parent Once you file the court forms with the Clerk's office, you will need to notify other parent that you filed a Joint Motion to Modify Custody and the upcoming court date.You will need to:Mail a file-stamped copy of the Joint Motion to Modify Custody and Affidavits to the other parentComplete and file a Certificate of Mailing with the Clerk certifying the date and the address to which you mailed the court papersMail a file-stamped copy of the Certificate of Mailing to the other parentPrepare the Order for Modification of Custody The Order is the document that changes custody and it must be signed by the judge. If both parents agree to change custody:Prepare an Agreed Order for Change of Custody exactly as you filled out the affidavitsInclude information on who will have custody, the visitation schedule, and the amount of child supportBoth parents must sign the Agreed OrderMake two copies of the Agreed OrderPresent the Judge with your Order on the date of your hearingAttend the Hearing Things to remember for the hearing:Your court date will be at 50 W. Washington, Concourse Level CL-24Bring copies of all the documents you filed with the Circuit Clerk and any other papers you have on your caseArrive early and dress neatlyCheck the docket or ask the Clerk exactly what room you will be in because the assigned courtroom can changeTell the Clerk you are ready for the hearing when calledWait for your case number and name to be calledWhen called, tell the judge who you are and be ready to answer questions the Judge may ask you about your caseAfter your case is heard, the Judge will make a decision right away or tell you the case is under advisement (judge must think about it) and his decision will be made on a later court dateBe sure to get a copy of the Judge's order in your casePrepare the Necessary Forms You must fill out at least 3 forms: Joint Motion to Modify Custody Affidavit (one affidavit for each parent)Notice of MotionRemember: The Joint Motion to Modify Custody is very important and needs to be completed carefully. You should: Include as many details as possible;Always attach a copy of the Custody Order you are trying to change to your motion;Ask for everything you want in the motion. If you forget to ask for it in your motion, the court cannot give it to you;If the custody order is part of another order like a Judgment for Dissolution of Marriage or Paternity order, attach a copy of that order.Prepare Child Support Forms, if Necessary If child support is changing, you should also complete another set of forms.Generally, the parents’ child support obligations will change if the residential parent is changing from one parent to the other. To find these forms, go to "Changing Child Support Payments" in the "Related Articles" section of this guide. In the "Forms/Letters" section of the "Changing Child Support Payments" guide me, you will find the "Child Support Modification" automated document. It will help you create the following forms that you will need to change child support:Petition for Modification of Child SupportUniform Order for SupportChild Support Data SheetNotice to WithholdFile your Forms File your Joint Motion and Affidavits with the Circuit Clerk's office in the county where the custody order you are trying to change was entered. Remember: You need the original motion plus 2 copies to file with the Circuit Clerk. The Circuit Clerk keeps the original. You must give one copy to the other parent. You need to keep one copy for yourself. The Clerk will give you a court date. You need to write this court date on the Notice of Motion. To find out how to contact your Circuit Clerk visit the Illinois Courts' website. Notify the Other Parent Once you file the court forms with the Clerk's office, you will need to notify other parent that you filed a Joint Motion to Modify Custody and the upcoming court date.You will need to:Mail a file-stamped copy of the Joint Motion to Modify Custody and the Affidavits to the other parentComplete and file a Certificate of Mailing with the Clerk, noting the date and the address to which you mailed the court papersMail a file stamped copy of the Certificate of Mailing to the other partyPrepare the Order for Modification of Custody The Order is the document that changes custody and it must be signed by the judge. If both parents agree to change custody:Prepare an Agreed Order for Change of Custody exactly as you filled out the affidavits Include information on who will have custody, the visitation schedule, and the amount of child supportBoth parents must sign the Agreed OrderMake two copies of the Agreed OrderPresent the Judge with the original, signed Order on the date of your hearingAttend the Hearing Things to remember for the hearing:Bring copies of all the documents you filed with the Circuit Clerk and any other papers you have on your caseArrive early and dress neatlyCheck the docket or ask the Clerk exactly what room you will be in because the assigned courtroom can changeTell the Clerk or the Judge's secretary you are ready for the hearing when calledWait for your case number and name to be calledWhen called, tell the judge who you are and be ready to answer questions the Judge may ask you about your caseAfter your case is heard, the Judge will make a decision right away or tell you the case is under advisement (judge must think about it) and his decision will be made on a later court dateBe sure to get a copy of the Judge's order in your case

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