In Illinois, there is a provision in the custody statute that requires someone who is going to file a motion to modify custody within two years following the entry of a custody judgment or order to show that the child is in serious endangerment. This does not mean that you have to have an evidentiary hearing to establish serious endangerment. It means that when you file a petition to modify custody less than two years after a prior custody determination, the petition has to have an affidavit attached that alleges that the child is in danger of harm whether it be physically, mentally, morally or emotionally. This affidavit works as a gate keeping devise in any petition to modify custody that is filed within the two year time frame. If the court, upon reading the affidavit, finds that there are reasons to believe that the child is in danger of physical, mental, moral or emotional harm, then the petition to modify custody can move forward even if it is filed within two years.
When a petition to modify custody is filed and it has been longer than two years since a custody judgment or order was entered, there is no need to file an affidavit alleging endangerment. However, the burden of proof to modify custody remains high. The legislature has built into the law very difficult standards to modify custody as stability for the children is a critical factor of importance. Modification of custody requires the party wanting to change custody to show by clear and convincing evidence that there has been a substantial change in circumstances and that the change has had a detrimental effect on the child and that it would serve the child’s best interest to modify custody.
A substantial change in circumstances is not enough standing alone. The changes has to be coupled with a detrimental effect on the child. Then the court must be convinced by clear and convincing evidence that the child’s best interest would be served by changing custody.
Many people think that they can agree to give the other party custody and come back later and change it. This is not an easy task. There is a different standard for an initial custody determination, simply best interest of the child. Once you move to modify, the burden shifts and is extremely rigorous.