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How to Change Child Custody in Illinois | Parenting Time Modification Explained

Updated on
October 28, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we explain how to change parental responsibilities and child custody in Illinois.  We explain the difference between modifying parenting time and responsibilities within two years of the last final parenting order and after two years have passed.  We also discuss filing a petition to modify child custody in Illinois.  

For an overview of Illinois child custody law, check out our article: Illinois Parenting Laws Explained.  Prior to 2016, Illinois law used the terms “custody” and “visitation.”  Since 2016, the law has instead referred to what we normally think of as custody as “allocation of parenting time and responsibility.”  

Modifying Child Custody in Illinois Within Two Years of a Parenting Order

One of the goals of the Illinois legislature in drafting the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) was to create a stable environment for children and avoid relitigating child custody issues.  For this reason, it is difficult to change parenting time and responsibilities except by mutual agreement within 2 years of the date that the most recent final parenting order was entered in a custody case.  

In order to modify parenting time or responsibilities within 2 years of the last final order, the petitioner is required to submit an affidavit along with his or her petition that shows that the current environment seriously endangers the child’s physical, mental, moral or emotional health.  “Serious endangerment” includes long term harm and potential harm as well as the immediate harm to the child.

It is within the court’s discretion whether to allow a hearing after reviewing the petition and affidavit.  

Modifying Custody in Illinois if it Has Been Two Years Since the Last Parenting Order

If at least 2 years have passed since the last final parenting order was entered, Illinois courts use a two part test to determine whether to modify parenting time and responsibilities.  

First, the petitioning party must show that there has been a substantial change of circumstances affecting the child since the last parenting order was entered.  Second, the petitioner must show that the proposed change to the parenting order is in the best interests of the child.  The court will not consider the best interests of the child unless the petitioner first show that circumstances have changed substantially.  

The burden of proof is on the petitioner to prove his or her case by a preponderance of the evidence.  This means that the court must decide that the petitioner’s version of the facts is more likely than not to be true.  This is a lower standard of proof than the clear and convincing evidence standard that was in place prior to 2016.  

Filing a Petition to Modify Child Custody in Illinois

The first step in modifying child custody orders in Illinois is to file a Petition to Modify Parenting Time and Responsibility with a court that has jurisdiction over your case. At this time the court will give you an initial court date, time and location.  The petition and notice of the court date must be properly served upon the other party.  

To learn more about what happens after the filing of a petition in a custody case, check out our article: Timeline of Illinois Parenting Cases.

How to Change Child Custody in Illinois | Parenting Time Modification Explained
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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