As we touched on in Part One of this series, several things have changed in Illinois Divorce Law as it relates to Illinois custody laws. See below for a summary on the changes affecting how cases are handled after there has been a custody judgment already in place.
Abuse of Parental Allocation
These situations arise when one parent doesn’t follow the Court’s orders regarding decision-making or the parenting time schedule. In the event of an abuse of Parental Allocation, the Court can expedite a procedure for enforcement. Either parent can file a petition to enforce the order, and it must include: the name and address of the person filing the petition, the respondent’s name and address to include place of employment or mailing address, terms of existing parenting plan, nature of the violation with relevant dates and pertinent information, as well as indication that reasonable attempts were made to resolve the dispute.
Should the court find that a parent was non-compliant with the parenting schedule or the Order on decision-making, the court can issue another order revising and/or providing for additional terms consistent with the original judgment. The Court can also order the parents to attend parent education classes or counseling, as well as provide for makeup parenting time and fines per incident if there was indeed a violation.
Further, the Court can punish an offending party by:
- Ordering them to pay attorney’s fees and/or court costs,
- Suspension of driving privileges
- Issue probation or periodic imprisonment
- Make a finding for a petty offense ruling; and/or
- Issue a contempt order, transmitted to the sheriff.
Additionally, the Court’s role with parental relocation has experienced significant changes.
First, let’s look at the previous parental relocation laws in Illinois. Parents with shared children in a household, needed to obtain permission from the Court in order to move from Illinois. An “Order of Removal” had to be issued by the Court and the moving parent had to prove the move was in the best interest of the child(ren). This version relied on the Illinois border to determine whether a parent had to get permission from the Court to move. A couple of challenges were defined with this law:
- It did not consider a parent currently living near the border may relocate to a residence outside of Illinois that’s a reasonable distance away
- It did not take into consideration the relocation of a parent with children within the state may still be even farther than if the parent had moved out of state.
Senate Bill 57 – In Effect January 1, 2016
This new bill addresses these challenges. The requirements have changed for parents who seek permission of the Court prior to relocation with their children. Further, the new provisions base the requirement for Court’s permission on the distance from the original residence, rather than whether the move solely crosses state lines. Parents living in Cook, DuPage, Kane, McHenry, and Will can move to a new residence in Illinois within 25 miles without obtaining Court permission, and for all other counties the distance is increased to up to 50 miles. If seeking to cross State lines, parents can move up to 25 miles away from the original residence without obtaining permission from the Court. In the event your move exceeds these mile boundaries, then either consent from the other parent or from the Court will be necessary.
A further change is that as parents seek to relocate, new requirements include written notice of intended relocation from one parent to the other, and there are specific requirements for how and when this notice must be given. In the event the non-moving parent objects, the Court determines whether the relocation is in the best interests of the child.
Given these changes, it is extremely important to contact an experienced family law attorney before you make the decision to move with your children.
Along with the changes to how a Court decides an initial parental allocation proceeding, the Courts now have new rules for how they look at modification proceedings, i.e. cases where a parent wants to change the old order in some way.
The new statute still provides for two types of modification requests: petitions filed within 2 years after the Judgment and those filed after two years.
If you want to file for a modification within the first 2 years, the new amendment does not make your request any easier than the old law. But, the statute does now reference that a Court can consider whether not allowing the modification will result in a “significant impairment of emotional development.”
If filed after 2 years, the parent seeking modification now has a much more relaxed burden of proof than the old “clear and convincing evidence” standard, which provided the petitioning party show that “it was highly and substantially more probably to be true” that a modification was in the best interests of the child, due to a substantial change of circumstances that occurred after the Judgment was entered. Now, litigants need only prove their case by a “preponderance of the evidence” standard, which means that it is “more likely true than not” that the circumstances have substantially changed and a modification is in the child’s best interest. Although this may seem like more legal talk, it makes a big difference in how difficult it will be to get a Court to agree with your position to modify the old Order.
Almost equally significant is the addition of a new law providing that a parent can now request a modification of parental allocation even where there has been no substantial change of circumstances. (gasp!) But, this exception to the long-established “substantial change” finding is limited to the following four situations:
- Where the proposed modification reflects what the parents have been doing, without objection from either parent, for the past 6 months
- Where the proposed modification is only a minor change
- Where the modification is necessary to change a prior “agreed order” due to the fact that, had the Court known about certain circumstances at the time, would not have approved the agreement of the parents
- Where the parties agree to the modification
Understanding such a comprehensive and complex rewrite of the Illinois divorce laws is no easy task. For assistance with understanding the new laws regarding Parental Allocation in Illinois, please contact Sherer Law Offices. Our attorneys can provide you with the most recent information and guidance with Parental Allocation procedures and requirements, and answer any questions you may have when considering what is best for you and your family.