Changing Child Custody

Changing Child Custody

Last updated: October 2011

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You can ask the court to change an existing custody order, even if the other parent does not want to. To do so, the following must be true:2 years have passed since the custody order was signed; and There has been a "change in your circumstances." A change in custody may mean that: The child moves and lives with a different parent;A different parent is making the day-to-day decisions about the child;A different parent pays child support; orThe child has visitation with a different parent and they’ll see each other less often.Click on words that appear like 'this' to learn what these words mean.What does “custody” mean? Custody is a legal term that describes a parent’s right and responsibility to care for and control a child. A custody order is a judge’s written decision that explains the custody relationship between the two parents and their child. What are the different kinds of custody? Parents can have two types of legal custody: joint custody and sole custody. The main difference is which parent makes decisions about the child’s upbringing. As a parent, you need to understand how your custody arrangement works. The type of custody you have determines: Which parent the child will be living with most of the timeHow major decisions about the child will be made, including those about education, religious upbringing and health careWhich parent will be have to pay child support andWhich parent will have visitation with the childWhat does “sole custody” mean? Sole custody means that one parent has the right and responsibility to make major decisions about their child’s welfare. This includes education, medical care and religious development. A parent who has sole custody is known as the “custodial” parent. The other parent is known as the “non-custodial” parent. If you are a parent with sole custody, your child lives with you. The other parent has visitation with the child. You can decide if you want to discuss major decisions with the other parent. If you are the non-custodial parent, you still have the right to spend time with your child. You can access your child’s medical and school records and to participate in their activities. If the court finds that you pose a danger to your child, the court will order visitation for you with your child. The non-custodial parent pays child support.What does “joint custody” mean? Joint custody means that both parents have agreed to make major decisions about raising their child togther. Parents with joint custody have agreed to talk to each other, cooperate, and share the responsibility and right to make major decisions about their child’s life. Major decisions include a child’s education, medical care, and religious development. Parents with joint custody usually have signed a Joint Parenting Agreement that explains how they will work together. The agreement will state which parent the child will live with most of the time. Visitation for the other parent will also be addressed. The joint parenting agreement will state each parent’s powers, rights and responsibilities for the personal care of the child and for the major decisions such as education, health care and religious training. The agreement must also contain a method for resolving disagreements between the two parents.Joint custody requires parents to be able to talk with each other and work through problems. If you and the other parent cannot show the judge that you are able to agree, the judge will not order joint custody. How do I know if I already have a custody order? Questions about child custody are usually part of a bigger reason someone filed a court case. A decision about child custody may be part of a case in which: A married parent filed court papers asking for a divorce from the other parent;A married parent filed court papers asking for a legal separation from the other parent;An unmarried parent filed court papers asking for a court order of paternity and/or custody of a child;An unmarried parent filed court papers asking for child support payments from the other parent;The State of Illinois filed court papers on behalf of a married or unmarried parent asking for child support payments from the other parent;An unmarried or married parent filed court papers asking for protection from domestic violence or abuse and protecting the child was part of the case. If you and the other parent took part in one of these cases, an order that sets out your rights and responsibilities for custody 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. 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. Your custody order may be part of a case filed between you and the other parent such as:For married or divorced parents:A divorce asking the court to end a marriageA legal separationA child support case where one parent asked the court to order the other parent to pay support orAn order of protection where one parent asked the court to stop domestic violenceFor unmarried parents:A paternity case (where a parent asked the court to determine the biological father of a child) A petition for custody asking the court to decide who has custody of a child where the parents signed a Voluntary Acknowledgement of PaternityAn order of protection asking the court to stop domestic violence A petition for child support asking the court to order a parent to pay supportA petition for child support filed by the State of Illinois asking the court to order a parent to pay child supportAn administrative proceeding to establish child support filed through the Illinois Department of Healthcare and Family Services (IDHS)Sometimes the custody order is not obvious in a case file. Your file may not include a document titled “custody order.” A custody decision may be part of another order. For example, a custody decision is part of a Judgment for Dissolution of Marriage in a divorce case. If a someone is determined to be the child's father a custody decision may be part of a Paternity Order.I have a custody order for my child, but I think I want to change it. Is this a good idea? Be sure you understand how any changes in custody will change your rights and obligations as a parent. A change in custody may mean that: The child moves and lives with a different parentA different parent is making the day-to-day decisions about the childA different parent pays child supportThe child has visitation with a different parent and they’ll see each other less oftenI want to change custody. What is my first step? Your first step is to look at your existing custody order. You will need information from the existing custody order to write a formal request to the judge asking for a change. You do this by writing a "Petition to Modify 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 you and the other parent haveThe 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 childHow often and how much child support is paid by the non-custodial parentI have my custody order. What do I need to do next? The easiest way to change custody is to agree on the changes with the other parent. If you and the other parent can agree, then you may ask the court to change the existing custody order by filing a Joint Motion to Modify Custody. For instructions and forms on how to do this, please see the article “Changing Custody by Agreement” under the “Related Articles” section. If you and the parent cannot agree on the change in custody, you will have a “contested” custody case. Contested custody cases can be very complicated; it is important to talk to a lawyer if you can. You may search for a lawyer by going to the "Find Legal Help" section.When can I file a petition to change custody? Illinois law says that you can only change custody at certain times. You can change custody at any time if you and the other parent agree to the changes and put your agreement in writing.You can also change Custody if at least two years have passed since the date of the custody order and:A change in the child’s circumstances has occurred, orA change in the circumstances of the custodial parent has occurred, or (if the parents have joint custody) a change has occurred in the circumstances of either or both parents having custody, and That the change is necessary to serve the best interest of the childThe facts that create the change of circumstances must have happened after the original custody order was entered or were unknown to the court at the time. The person seeking to change custody must prove these facts. This means that the person who wants to change custody must show by clear and convincing evidence that there has been a change of circumstances. This is a very high burden of proof. How do I know if there has been “a change in circumstances”? A change in circumstances can occur:If you and the other parent have joint custody but can no longer agree on decisions about the childIf the child has new health concernsIf the custodial parent or residential parent has new health concerns, such as alcohol or drug addictionIf the custodial parent or residential parent has a changed in their living arrangements, such as getting remarriedIf the custodial parent makes efforts to deny the other parent an ongoing relationship with the childThis is not a complete list of what may be considered a change of circumstances by a court. A court makes custody decisions, including changes in custody, based on the facts of each case. It is not possible to predict with certainty how a judge will act based on a particular change of circumstances.What if I want to change custody and it has been less than 2 years since the original custody order was entered? If the current custody order is less than two years old, and the parents do not agree, custody can only be changed if there is “serious endangerment” to the child’s physical, mental, moral or emotional health. “Serious endangerment” includes a child’s other parent marrying or living with a sex offender. If you believe that your child is in danger, then you should speak with a lawyer immediately. To learn more about sex offenders and Illinois laws about them, see the Illinois Sex Offender Information website. What is an Affidavit and when do I need it? The Affidavit is the form you will use to state the reasons why you believe the childs present environment seriously endangers their physical, mental, moral or emotional health. When you sign the Affidavit you are signing it under oath. This means swearing that what you wrote in your affidavit is true. Make sure everything you wrote in your Motion to Modify Custody matches everything you wrote in the supporting Affidavit. Your Affidavit should be attached to your Motion and filed with the Circuit Clerk. What do I write about in my Motion to Modify Custody? When you write your motion, remember:Your motion tells the judge what you want and why. 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, otherwise you will need to file another motion.;The judge may not know or remember your particular case. You will need to include some dates and facts about previous court orders involving you and the other parent; To help the judge understand your side, your motion should give the judge a detailed explanation about the events that caused you to want a change in custody; The judge will need your existing custody order to help decide your motion. You must attach a copy of the current Custody Order you are trying to change to your Motion to Modify Custody.Remember, 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 Motion to Modify Custody.How and where do I file a motion to change custody? You will need to file your motion in the same case where custody was decided by the court. The case number appears in at the top of the first page of the custody order. A divorced parent wanting to change custody would file their motion to modify custody under the same case number as their divorce case.You will need to file your Motion to Modify Custody in the county where order of custody was decided. If the parent or the child do not live in this county, it may be possible to move the case to the county where the child lives. You should consult with a lawyer before attempting 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 going to the "Find Legal Help" section.Find Your Existing Custody Order Your first step is to look at your existing custody order. You will need information from the existing custody order to fill-out the forms you need to file.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 you and the other parent haveThe 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 childHow often and how much child support is paid by the non-custodial parentPrepare the Necessary Forms You must fill out 2 forms:Petition for Modification of CustodyNotice of HearingRemember: The Petition for Modification of Custody is very important and you need to complete it carefully: Read the instructions that come with the forms very carefully;Include as many details as possible;If you forget to ask for it in your motion, the court cannot give it to you;Always attach a copy of the Custody Order you are trying to change to your motion;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 the Necessary Forms, If the Change Is an Emergency You must fill out 3 forms:Petition for Modification of CustodyAffidavit in Support of Custody ModificationNotice of HearingRemember: The Petition for Modification of Custody is very important and needs to be completed carefully: Read the instructions that come with the forms very carefully;Include as many details as possible;If you forget to ask for it in your motion the court cannot give it to you;Always attach a copy of the Custody Order you are trying to change to your motion;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 child is going to live with the other parent.To find these forms, go to "Changing Child Support Payments" in the "Related Articles" section of this guide.Go to the "Forms/Letters" section of the "Changing Child Support Payments" guide me. There, 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 You should file your papers at the same courthouse where you got your most recent custody order. Contact the Circuit Clerk at the courthouse to schedule a court date for a hearing on your Petition. Make sure that the court date is at least 14 days in the future. For an emergency situation, set the court date as soon as the clerk will let you. This will usually be at least 10 days in the future. Fill in the date on the Notice of Hearing with the information the Clerk gives you. Make 2 copies.Remember: You need the original petition, 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.File the Notice of Hearing and the Petition with the following attached:The most recent child custody order(s) attached If it's an emergency Petition, your AffidavitThe Circuit Clerk will file stamp all your papers and keep the originals. The Clerk will give you back your stamped copies.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 Petition to Modify Custody and the upcoming court date.You will need to:Mail one copy of the Petition for Modification of Custody (with the attachments) and the Notice of Hearing to the other parent;Keep one copy of each for your records;Fill out the Proof of Mailing form, and make one copy of it for yourself;File the Proof of Mailing with the Clerk certifying the date and the address to which you mailed the court papers. Prepare the Order to Modify Custody The Order is the document that changes custody and it must be signed by the judge.Fill out the Order to Modify Custody by making sure that the parents’ names and the children’s names are filled in on the first page of the Order. The Judge may complete the rest of the Order at the hearing.Make 2 copies of the Order.If you are also asking to change child support, make 2 copies of the the Order to Modify Child Support.You will give the Judge your Order on the date of your hearingGo to the Hearing Things to remember for your hearing:Bring copies of all the documents you filed with the Circuit Clerk and any other papers you have on your case;Arrive early and dress neatly;Check the docket or ask the Clerk exactly what room you will be in because the assigned courtroom can change;Tell the Clerk you are ready for the hearing when called;Wait for your case number and name to be called;When called, give the Judge your order and be ready to answer questions that the Judge may ask you about your Petition;If the other parent shows up, the Judge will ask them questions;Be sure to get a copy of the Judge's Order in your case.If the Judge Signs The Order to Modify Custody, Mail It to the Other Parent If the other parent does not show up for a hearing date and the judge signs your Order to Modify Custody, you need to send a copy of the Order to the other parent. After court, mail the parent a copy of the Order by regular mail. Fill out and file the form titled Proof of Mailing – Order to Modify Custody with the Circuit Clerk.

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