Court Finds That A Seeking an Additional Overnight in Parenting Time is Not a “Minor Modification” Pursuant to 610.5(e)(2).

There have been several changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). One of those changes is the requirements to modify a parenting plan, formerly known as visitation. Prior to the changes, a party need only prove that it was in the child’s best interests to modify a visitation schedule.

The new change now codified into the IMDMA as section 750 ILCS 5/610.5, allows for modifications of the parenting plan if there is a substantial change in circumstances and if the modification is necessary to serve the child’s best interests. If there are no substantial change in circumstances, the parties must then meet certain criteria to modify the parenting plan, one of them being that the modification is “minor”.

In In re the Marriage of O’Hare, 2017 IL. App (4th) 170091 (4th Dist.), the trial Court found, and the Appellate Court agreed, that adding an additional overnight every 14 days is not a minor modification. That change would essentially increase the Father’s parenting time by 6%, resulting in a 50/50 parenting schedule. With the finding that such a request would not be a minor modification, the Father would then have to prove that there has been a substantial change in circumstances.

Because section 610.5 is relatively new, the Court has to go into the interpretation of statutory construction as opposed to prior precedent. I would assume that there will be more litigation regarding this issue. For now, however, at least the 4th District has opined that requesting an overnight every 14 days is not an exception to the requirement of proving a substantial change in circumstances.

Leave a Reply