In The Original Joint Parenting Agreement, If I Was Awarded Parenting Time But My Former Spouse Was Awarded Primary Custody, If I Can Prove That It Would Now Be In The Best Interest Of The Children, Could That Be Enough Of A Substantial Change To Make A Judge Consider Making The Modification?
Yes. For the modification of parenting time, the judge looks at the child’s best interest in almost all circumstances. You don’t have to prove serious endangerment, and you don’t have to prove that there has been a substantial change even after two years. That is also true of residential custody. Parenting time is the amount of time that each parent spends with the child throughout the week. It’s allocated very specifically, and each hour of the day is allocated to one or the other parent. Suppose dad decides that it’s no longer in the child’s best interest to be with mom on Wednesdays because they go out drinking and leave the child home for too long, and when they come home, they’re not fit to be in charge. In that case, dad can bring that to the judge’s attention, indicating that it’s in the child’s best interest that he have Wednesday nights instead of mom.
Now, what often happens is the judge then says, “Well, okay. If you want Wednesday nights, that’s great, but give her your Tuesdays”. Judges are very reluctant to change the division of parenting time that was originally agreed to in the parenting judgment. There has to be a compelling reason to modify that visitation schedule. Changing the visitation schedule may unsettle the child, so there has to be a significant reason. Now, sometimes a father will say, “When the child was smaller, I agreed to less time with them because they needed their mom. But I now want more time with the child who is school-aged and can stay at my house.” I’ve seen judges give that type of a change in parenting schedule more freely now than they ever have before.
About a year ago, there seemed to be a concerted decision that a fifty-fifty schedule, meaning each parent received approximately equal time with the child, was in the child’s best interest. Illinois came close to passing legislation that would have said in a statute that fifty-fifty is in the child’s best interest unless the court finds evidence to the contrary, making it so that it would be next to impossible to have anything but a fifty-fifty schedule. That didn’t pass, but I have found that our judges lean toward a fifty-fifty schedule at a level they have never done before.
If somebody who doesn’t have 50% of the time comes in and requests more time, our judges have been bending over backward to increase that parent’s time with the child. That being said, if you can show it’s in the best interest of the child, the judges will often agree with the request. Until the last year, I’d never seen it, but in the last year-and-a-half it has been happening regularly.
One of the rules regarding changes in visitation that is important to remember is if visitation schedules change, child support payments will often also be adjusted. It depends on whether the visitation schedule’s modification increases that parent to over 145 nights, which is 40%. If they were at 35% of the overnights and get more than a 145, it changes their child support obligation.
Some judges believe that a change in visitation is a substantial change in circumstances for child support purposes. Other judges have been suspicious and have not deemed it a substantial change. Parents have to discuss whether they want to agree to an increase because it could have far-reaching implications for child support, not just visitation. If the judge orders a change in visitation and the parties didn’t agree, you have to make sure the judge is aware that your concern on this will change child support and that may be the reason for a request for more visitation meaning the issue is more related to child support than this party’s sudden interest in their child.
We’ve had those types of situations a lot lately, and the judges still seem to give visitation. They’re much less willing to change child support because of it, though. That substantial change in circumstances for child support can be affected by the recent modification of visitation. It sometimes makes the judge look at the circumstances a little harder before saying there’s been a substantial change.
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