How Likely Is It For A Parent Who Has A Joint Custody Or Parenting Time Situation Where It’s Like A 70-30 Or Something Like That? If The Parenting With The Less Time Decides, “No, I Would Like A Fifty-Fifty”, How Likely Is A Court To Grant Something Like That Or Is That, Again, Just Simply It Has To Be A Substantial Change Of Circumstances?
In the last few years, we’ve seen that you should assert in that Petition to Modify Visitation that it is in the best interest of the child to spend more time with the other parent. You claim that the current schedule doesn’t meet the child’s needs because the child needs to have an equal relationship with both parents, and you assert that the child would be better off in their education, health, and mental health if they have an opportunity to be with both parents equally. Still, if nobody agrees, the court then appoints a guardian ad litem for the child, which is an attorney hired to represent the child and represent the child’s interests in that litigation. The court charges the guardian ad litem to investigate both parties’ houses, circumstances, and relationship with the child and the child’s best interest and report back to the court.
A guardian ad litem is an attorney with special training regarding child issues and mental health issues. They have substantial training every year in that area. They investigate by meeting with the parents and seeing each parent’s location, assessing each homes’ appropriateness for the child, assessing their interactions with the child, and their story to the guardian ad litem about why they want the increased time. The guardian ad litem then reports back to the judge what their findings are. They have a lot of influence over the judge and the court in those cases because the guardian ad litem is the court’s eyes and ears for purposes of investigation.
Each party has the right to ask the court to appoint a custody evaluator. A custody evaluator is a psychological professional with a doctorate in social work, that would do an investigation and determine, similar to what the GAL just did. However, this investigation includes more mental health issues and includes what is in the best interest of the child at a higher level maybe than the GAL can do. The judge can then determine whether or not the court will appoint a custody evaluator on behalf of the court that is done under one section of our statute. If the court decides the GAL is sufficient and will not hire a custody evaluator, then the party has the right to hire a custody evaluator as a retained expert.
So, if the GAL makes a decision and one of the parties doesn’t like what the GAL recommended, they have a right to get a custody evaluator. Either the court appoints one, or the parties can hire their own. Then that custody evaluator evaluates both of the parties, evaluates the child, often does psychological testing, and then makes a recommendation regarding the split in visitation time that would be best for the child. That process is highly time-consuming and extremely expensive. It gives one party the ability, if they have the money, to ram it down the other party’s throat and make it last longer and cost more.
That is a convoluted process for one party or the other to ask for more parenting time. In the end, the judge has an evidentiary hearing called a trial. Both parties testify at the hearing, the GAL testifies at the hearing, other witnesses are allowed to testify at the hearing, and the custody evaluator testifies at the hearing. Then, the judge decides the visitation schedule that would be best for the parties and best for the child and then rules that this will be the schedule going forward. During that process, when a GAL comes out and gives their recommendations, the parties can settle based on what the GAL recommended before going to the next step.
Suppose they choose to get a custody evaluator, and the custody evaluator makes the recommendation. In that case, they can choose to settle after hearing those recommendations assuming that the court would follow the custody evaluator’s recommendation. Often, they would want to settle before going to trial, and they can also settle any time before that. The judge that hears the case, hears the motions, and hires the GAL is often a judge who’s going to decide at trial. You can have a pretrial with the judge, and they will make recommendations to you for settlement so far. But if they’re unable to settle the case, they’re then allowed to go to trial, have a hearing with witnesses, and then the judge makes the determination what the schedule for the child will be going forward.
Once the judge decides what the child’s schedule will be going forward, it is more difficult to change than if there was an agreement between the parties. That doesn’t seem to make sense, but it is true. Once the judge made the ruling, a future judge would be less likely to undo it without substantial reason than if the parties had agreed and the parties had changed their mind and asked for a new schedule. The ruling by the judge is often harder to get changed than an agreement.
Suppose a judge ruled at an evidentiary hearing at trial regarding modifying custody, modifying child support, modifying spousal support, or any other issues we’ve talked about post-decree. In that case, it could be challenged and appealed. It has to be a final decision, it can’t be a temporary decision in the middle of a divorce. But if it’s post-decree and the judge modifies an aspect going forward, those are final decisions, that can be appealed. The process to appeal is that you file a notice of appeal, file an appellate brief, and file a notice of appeal. The appellate court gives you a schedule. You file your appellate brief within the amount of time allowed, and the other side files a response to your appellate brief. You file a reply in support of your appellate brief, and then the appellate court decides on whether or not they believe that there was an error in the judge’s decision or ruling. That usually takes between six and eighteen months, even two years, for the appellate court to come back and tell you what their verdict is.
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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