Legal Question in Family Law in Illinois

Re: Custody

You would have to show the court why the custody situation should change. Generally, court's look to what is in the best interests of the child.

Modification of Custody

It�s a short question, but it merits a long answer.

If the custody of these children has been awarded to the father by court order, you will need to file and prosecute a motion for modification of custody. To prevail on the motion, you must plead and prove by clear and convincing evidence (on the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment) �that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.�

If the motion to modify is contested, the foregoing burden of proof � by clear and convincing evidence � can be difficult to meet. And proving that a modification is �necessary to serve the best interest of the child� (as contrasted to proving that a change is beneficial) is also difficult. This is something that, if it will be contested, should clearly be handled by a lawyer.

You should also be aware that �Unless by [agreement] of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.� If the prior custody order is less than two years old, you�ll need to plead and prove �serious endangerment� before you can have your motion to modify heard by the court.