In January 2009, the parties divorced when their child was just 10 months old. In February 2012, the father filed a motion to modify custody pursuant to section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610(b) (West 2012)), alleging that (1) a change in circumstances occurred and (2) it was in their son’s best interest to be placed in his care. Following a six-day bench trial, the court denied his motion and he filed a motion to reconsider the court’s ruling. In that motion, the father alleged that the court improperly required him to prove that his ex-wife’s acts and conduct harmed their son’s welfare.
In July 2014, the court granted his motion to reconsider, concluding that its original ruling erroneously “placed an additional burden on him to show that the welfare of the child was adversely affected or harmed by the acts and conduct of his ex-wife, rather than considering the factors for the best interest of the child for modification.”
Custody was transferred to the father.
The ex-wife appealed, and stated that her ex-husband failed to prove that the change in circumstances adversely affected their son’s welfare. The Appellate Court disagreed, and affirmed the trial court’s decision to change custody.
At trial, the court heard that the mother had remarried and suffered a various domestic violence issues in her home with her new husband. There was evidence that she had been arrested for drinking and driving. All of the evidence at trial demonstrated that there were many instances supporting a lack of stability in the mother’s home, but the child had not been directly affected.
The mother argued that there had to be changes affecting the welfare of the child. That a modification should only be granted where the changed circumstances have already harmed or affected the welfare of the child.
In this case, the trial court was correct when it stated that it was not required to wait for something to happen to the child before it could modify custody. Indeed, this case demonstrates the statute operating as intended. Here, the father identified changes in his ex-wife’s circumstances—including, among other things, the emergence of (1) serious mental-health problems; (2) a relationship between his ex-wife and her new husband that was arguably troubled and, at times, violent; (3) instances of reckless and neglectful parenting by petitioner; and (4) an unwillingness by petitioner to be truthful and forthcoming with respondent about important matters affecting the child. These changes clearly affected their son’s welfare insofar as they increased the risk of something bad happening to him. The minor child was merely lucky, that these changes in the mother’s life had not yet caused harm to the child.
As such, the Appellate Court agreed with the trial court that a modification of custody was warranted.