By Jordan Levey
Many times after a case is finalized, one of the parties wishes to modify the parenting arrangement. “Allocation of Parental Responsibilities” is what was formerly known as “Custody” in Illinois (you can read more about the change in the law/terminology here). Allocation refers to (1) parenting time and (2) authority to make significant decisions regarding the minor child(ren). When a divorce or parentage case is finalized, an Allocation Judgment will be entered either by agreement or by a Judge’s ruling. The Allocation Judgment will set forth a specific parenting time schedule. The Allocation Judgment will also specify whether major child-related decisions will be made jointly by both parties, or whether one parent will be allocated sole decision-making responsibility. The Allocation Judgment is a final, enforceable Court Order. However, the Allocation Judgment is modifiable under certain circumstances.
How do I modify the Allocation Judgment?
How and when an Allocation Judgment can be modified depends on the circumstances of your case. Section 610.5 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) governs modifications. Typically, an Allocation Judgment can always be modified by agreement (unless the modification is contrary to the child(ren)’s best interests). In other words, if you and the other parent are in agreement to modify the current parenting arrangement then you may enter an Agreed Order to do so. However, if the other parent is not in agreement to modify the Allocation Judgment, then you will need to file a Petition to Modify Allocation of Parental Responsibilities.
If you are seeking to modify only the parenting time schedule (rather than the allocation of decision-making responsibilities), then you can bring your Petition at any time so long as there has been a substantial change in circumstances since entry of the Judgment. However, you have to wait 2 years after the Judgment is entered before you can file a Petition seeking to modify the allocation of decision-making responsibilities, unless there is a risk of serious endangerment to the child(ren)’s physical, mental, emotional, or moral well-being. Once two years have passed, you can seek to modify decision-making upon showing that there has been a substantial change in circumstances that necessitates a modification.
In certain circumstances, the Court can modify an Allocation Judgment even when there has been no substantial change in circumstances. Specifically, you must show that the modification would be in the best interests of the child(ren), and that at least one of the following conditions is met:
- the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangements is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent;
- the modification constitutes a minor modification in the parenting plan or allocation judgment;
- the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved under [the relevant sections of the statute] had the court been aware of the circumstances at the time of the order or approval; or
- the parties agree to the modification.
What if the other parent is seeking a modification solely to harass or upset me?
If the Court finds that a parent is seeking a modification solely to harass or annoy the other party, then the Court can order the parent seeking modification to pay the other party’s attorneys’ fees and costs. Additionally, if one parent repeatedly files frivolous Petitions seeking modification, then the Court can bar that parent from filing a Petition for Modification for a period of time.
It is possible to modify your current arrangement for parenting time and/or decision-making once your case has been finalized. However, the process depends on exactly what you’re seeking to modify, how much time has passed since the Judgment was entered, and the specific circumstances of your case. At the end of the day, the Court will determine whether such a modification would be in the best interests of your child(ren).