How Long Do I Have To Wait To File A Motion to Modify Custody?

Although most people would like to believe that their Custody Judgment will forever resolve any custody disputes, this isn’t often the case.  Section 610 of the Illinois Marriage and Dissolution of Marriage Act allows for a party to seek a modification of custody in certain circumstances.  Specifically, a party can modify within 2 years if there is “reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health”.

 

If there are no serious endangerment issues, a Court may modify a custody judgment after two years if the court finds by clear and convincing evidence upon the basis of facts that have arisen since the prior judgment that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.  750 ILCS 5/610.

 

There has been a lot of litigation as to what would constitute “substantial change in circumstances”.  The courts have found that convictions and DUI charges constitute change in circumstances.  See In re the Marriage Brudd, 307 Ill. App. 3d 57 (3rd Dist. 1999).  Courts have also found that a mother who was engaged in multiple short-term marriages and relationships often with abusive men, multiple relocations, warranted a modification of custody.  See In re the Marriage of Knoche and Meyer, 322 Ill. App. 3d 297 (5th Dist. 2001).

 

Not only must the petitioning party need to prove change in circumstances, the party also needs to show that the change is in the child’s best interests pursuant to 750 ILCS 5/602.  If the Court finds that a party filed a frivolous motion for harassment purposes, a Court can assess attorney’s fees pursuant to 5/610(c).  As such, a thorough determination as to the facts in the case prior to filing is important.

 

As such, if there are issues in the current custody arrangement, the statute allows for you to file a petition to modify the custody arrangement within two years if there is serious endangerment, and after two years if there has been a change in circumstances.

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