Is It True That Ideally If You Do Want To Make A Request To Modify Your Custody Or Your Parenting Time, If You Can, It’s Best To Wait At Least The First Two Years Following A Divorce Or Separation? Is There A Certain Standard Where A Judge Or Court Would Prefer To See The Child In A Settled State For A Longer Time?
Yes, and there are two things at issue there. For parenting time, the standard is in the best interest of the child no matter what. However, a statute says, “You cannot change residential custody,” meaning you can’t change who has the majority of the parenting time in the first two years without there being serious endangerment. The two, when read together, are a bit confusing because if you’re trying to change from having 20% to having 60%, you can’t do that in the first two years unless there’s a serious endangerment to the child. However, if you used to only have Tuesday and Wednesday, you most likely can make that change. Since that doesn’t give you the majority of the parenting time, you can do that at any time based on what’s in your child’s best interest.
Residential custody or primary residential custody are terms that aren’t used very often in Illinois. They are not used in family law, but it’s used in our school systems. Our school systems decide what district a child is in based on which parent has the primary residential custody, which is equivalent to the majority of the time. Now, if they have a fifty-fifty schedule, then either parent’s house could be used for a school district. Whichever parent has the majority of the time is automatically designated the primary residential custodian. You cannot change that, and the statute says you can’t change the primary residential custodian in the first two years except for that serious endangerment. People get around it by arguing that they are not trying to increase their time above the majority. They can do that at any time, even in the first two years, just by claiming it’s in the child’s best interest.
Now, all of the judges familiar with the old laws from three years ago have that two years in their mind. They believe that it’s in the child’s best interest to have a stable, longstanding schedule that they can count on. The judges are less likely to give more time in the two years after the allocation judgment is initially entered because you just agreed to it. Hence, it is harder for a minor change in visitation in the first two years even if it’s not prohibited. Still, you can’t change into the majority residential custody parent in those first two years without that serious endangerment.
In Illinois, the difference between custody and visitation is important to understand. Visitation is when the child is at each parent’s house, what days, and what hours. Custody is the allocation of decision-making between the parties. Yet, in the school statute and the school regulations, they used the word “Primary residential custody” to allocate parenting time. When we use the word “Joint custody,” we mean that the parties had equal decision-making for the child. We don’t use the word custody at all anymore except for primary residential custody, which is what schools call the majority of the parenting time with one party.
So in a divorce case where we have an allocation judgment entered, and the parties have been allocated decision-making for the child, the court does not change that allocation of decision-making in the first two years. There are situations where the parties disagree with a particular medical, religious, or school event, and they are required to go to mediation first. If they cannot resolve the decision and decide the issue jointly, they can bring it to the court, and the court will make it.
Even though they can’t change their agreement from having joint decision-making to having sole decision-making on a particular issue, they can go before the court and have the court help them decide what they can’t accomplish jointly. The idea of changing joint custody in the first two years is relative to who makes decisions. In the first two years, you can’t change the agreement from joint custody to sole custody or joint decision-making to sole decision-making because there is a statute that requires there to be serious endangerment before being able to change it. But the court will, if the parties are unable to agree on something, decide for them after they’ve gone to mediation.
For more information on Parenting Time & Custody In Illinois, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling Strategic Divorce at (847) 234-4445 today.
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