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posted on 9/10/17

Most people move about 11 times during their lifetimes, and nearly all these moves occur before a person turns 40. So, a physical relocation of either the parents or the children often affects divorce and other family law orders, especially those that include child visitation provisions.

Often, the parents execute side agreements about pickup times, dropoff locations, and other such matters. It is not unusual for these “agreements” not to be agreements at all, but rather a string of emails or text messages. While it is a good thing for parents to work out such matters on their own, these agreements are unenforceable. So, if one parent unilaterally decides to return to the way things were before, the other parent has no recourse, even if s/he has made life changes in reliance on the new agreement.

Several years ago, Illinois lawmakers significantly reworked the state’s family laws, making modification easier in some cases and more difficult in other ones.

Modification Basics

In most cases, parents and caregivers must wait at least two years to request a custody or visitation modification. However, there are a number of exceptions:

  • Agreement: If both parents agree to the change and it is in the children’s best interests, the two-year moratorium does not apply. Furthermore, judges often approve these agreed modifications without hearings.
  • Cross Petitions: If both parents ask for a modification, even though the two years has not expired, the court presumes that there is a substantial change in circumstances that justifies an immediate change.
  • Child Endangerment: If one parent either cohabitates with or marries a registered sex offender, the present environment “seriously endangers” physical or mental health, or significantly impairs the children’s long-term emotional development, the judge may grant a modification irrespective of the two years.

There is a difference between the date the order is “rendered” (announced from the bench) and “entered” (written down and signed). In many cases, the difference can be several weeks or months.

After the two years elapse, most contested modifications are based on a substantial change in circumstances, a phrase that is not really defined but generally includes job change, marital status change, onset or relief from a chronic illness, and other major life events.

In some cases, mostly in agreed modifications, there need not be a substantial change. The judge will almost automatically approve modifications that:

  • Are minor (e.g. a typographical error),
  • Conform to the existing circumstances, or
  • Are based on an agreement that has lasted at least six months.

Note that there is a difference between “assent” and “agreement.” The former implies that one party does not like the arrangement but is playing along not to rock the boat, and the latter implies that both parties are on the same page.

Most contested modifications go first to mediation. There, a highly-trained mediator tries to facilitate settlement between the parties, and mediation is successful in most cases. If mediation fails and the parties cannot resolve the matter amicably, there is a trial.

Rely on Experienced Lawyers

Because life changes happen, most divorce orders probably need to be modified every few years. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Delfi de la Rua)