Emergency Motions to Modify Child Custody
When you go through a divorce the court will determine custody of your child or children. In Illinois this is now described as Allocation of Parental Responsibility. In order to determine this, the court looks at what is in the best interest of the child. Initially, to determine the child’s best interests to determine “custody” the courts look a multitude of factors including:
- The wishes of each parent seeking parenting time;
- The wishes of the child, considering the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
- Any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
- The interaction and interrelationship of the childwith his or her parents and siblings and with any other person who may significantly affect the child’s best interests;
- The child’s adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved;
- The child’s needs;
- The distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’sdaily schedules, and the ability of the parents to cooperate in the arrangement;
- The physical violence or threat of physical violence by the child’sparent directed against the child or other member of the child’s household;
- The willingness and ability of each parent to place the needs of the childahead of his or her own needs;
- The willingness and ability of each parent to facilitate and encourage a close and continuing
- Any other factor that the court expressly finds to be relevant.
The Court Has Already Allocated Parental Responsibility, What If I Want A Change?
From the time that court grants “custody” or as it is now referred in Illinois when an Allocation Judgement/Parenting Time is entered. In order to warrant a change in custody, you must establish that the parent whom currently has custody of the child is unfit to maintain custody or that a change in circumstances makes it necessary to make a change in custody in the best interests of the child. However, the Court will not allow
- Both parties agree to waive the 2-year time requirement;
- A planned/court approved relocation; and
- Evidence that the parent’s conduct is putting the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development.
This two year rule keeps the courts from getting “clogged” with people bringing the issue of modification in front of the court without justification. In order to warrant a change in custody, you must establish that the parent whom currently has custody of the child is unfit to maintain custody or that a change in circumstances makes it necessary to make a change in custody in the best interests of the child.
Considerations When You Want an Emergency Motion to Modify
There are a few problems with emergency motions including that it is often attempted by parents to file “emergency” motions but they either fabricate evidence or rather claim something is an emergency when the court would not deem it to be one.
Something else to be aware of is that emergency motions may be ex-parte, which means that the party is required to try their best to give the other party notice of the motion hearing but the hearing can be held without both parties being there. So the court could make a determination without your presence. This is a great reason to make sure that you have a family law attorney so that notices get sent to them and there is no issues with you receiving paper work.
Also just because an emergency motion to modify is filed doesn’t mean that the parent it is filed against will automatically lose parenting time, the court may offer supervised visitation until the issues have been resolved but if the issues are severe enough then the parent may not be allowed time with the child until the issues are addressed.
So if you want to file an emergency motion to modify child custody you must first determine that you have cause under what is considered an emergency, then a motion needs to be filed laying out the evidence that you have that the modification is necessary, because it is filed as an emergency you will be brought into court for it quickly and there will be a hearing on the issue and the judge should make a determination that same day.
When There Are Grounds for An Emergency Motion
When considering restricting parental responsibilities the court will consider additional factors and the factors set out below will give you an idea of what the court deems an emergency:
- Abuse, neglect, or abandonment of the child;
- Abusing or allowing abuse of another person that had an impact upon the child;
- Use of drugs, alcohol, or any other substance in a way that interferes with the parent’s ability to perform caretaking functions with respect to the child; and
- Persistent continuing interference with the other parent’s access to the child, except for actions taken with a reasonable, good-faith belief that they are necessary to protect the child’s safety pending adjudication of the facts underlying that belief, provided that the interfering parent initiates a proceeding to determine those facts as soon as practicable.
If after the initial order had been entered, a parent was involved with an illegal sex act with a victim less than 18 years old, is not entitled to parenting time while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense. Note: this is when the parent themselves has been labeled a sex offender.
Another example is that you may be allowed to file an emergency motion to modify if the parent is letting your child spend time with either a significant other or a friend who has been labeled a sex offender.
In instances where one parent has committed violence against the other parent, or violence against the child then an emergency motion may be filed, in these instances I am referring to violence coming happening after the initial order has been entered. If one of these two issues is present the court will probably not allow any parenting time if they feel like the child is in danger. Or the court may allow supervised visitation depending on the circumstances.
If DCFS is called on you or your spouse, it is not necessarily true that your spouse has grounds to file an emergency motion right away or that your child will be taken from you. DCFS has 24 to contact the parent who the report was made against, depending on the extent of the charges your spouse may have grounds based on the DCFS’s report to file an emergency motion. However, DCFS does have 60 days to complete their investigation and in extreme circumstances will immediately remove the child from the environment. So while it depends on the independent circumstances, if DCFS becomes involved then you may use their finding in order to prove that the child is an immediate danger and therefore justify an emergency motion to modify.
My Parenting Time Has Been Restricted or Taken Away, Now What?
If you have had your parenting time restricted or taken away completely generally the court will ask you to make changes in order to show that you or your actions are no longer threatening your child’s this could be anything the court deems necessary, including:
- Mandatory Therapy;
- Parenting Classes;
- Complete addition programs; and/or
- Show evidence that you have fixed the issues presented at the hearing.
If you have already had your parenting time revoked. It is best to contact a family law attorney and go over your options, most likely the court will lay out for you what you need to do in order to be able to regain your parenting time. As discussed the judge will most likely either fully take away parenting time or do some type of supervised visitation until the changes the court wants made or done. Or in some severe situations the court may permanently take away parenting time. Once the changes have been made the court will most likely change the parenting time back or make a new schedule for the parties to follow.
If you want to file an emergency motion to modify or your spouse or ex-spouse has filed an emergency motion to modify Gateville Law Firm can help. To schedule a consultation, call our offices now at Naperville: 630-780-1034 or fill out an online contact form. We speak English and Spanish.
750 ILCS 5/602.7
750 ILCS 603.10
750 ILCS 60/102