Modification

Modification

___In General
   In a hearing to modify child custody provision the paramount concern is the best interest of the child; after divorce decree custody may be changed as the best interest of the child dictate, based on new conditions which have arisen since the decree and which affect the welfare of the child.  Kjellesvik v. Shannon

___Agreement Between Parties
   Parents may not bargain away their children’s interest; it is for this reason that parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children.  Blisset v. Blisset

___Burden of Proof
   The party seeking a change in custody has the burden of demonstrating that the child’s best interests warrant the change and that circumstances have changed sufficiently to permit the modification.  Katzer v. Katzer

___Custody Order
   The policy favoring finality and stability in children’s lives would be endangered if the custody standards in this section were used to modify custody judgments; it is clear that in order to modify an existing custody judgment, 750 ILCS 5/610 should be used.  In re Gibbons
   Litigation that is neither a motion for temporary custody nor an initial custody determination, but rather a modification of the original custody order, is governed by the dictates of 750 ILCS 5/610 and not this section.  In re Strader

___Denial Upheld
   A petition to modify a custody judgment under this section was properly denied since section applies to initial determinations of custody; modification of custody should be sought pursuant to 750 ILCS 5/610.  In re Gibbons
   The trial court did not abuse its discretion in denying father’s petition for a modification of custody where it was determined that it was in the best interest of the child that she remain with her mother despite the fact that the mother had been living with a man who was not her husband.  Boyer v. Boyer

___Illustrative Cases
   Where support obligation and visitation rights were established in the respondent, along with a prior judgment of parentage, when respondent filed petition to transfer custody it should have been treated as a motion to modify custody under 750 ILCS 5/610 rather than treated as if it were an initial custody determination under this section.  In re M.M.W.

___Petition Required
   The court cannot modify custody under 750 ILCS 5/607.1 absent a petition to modify pursuant to this section or 750 ILCS 5/610.  In re M.M.W.

Mother

___Presumption of better Custodian Homosexual Parent
   Illinois courts no longer presume that the mother is necessarily the better custodian for young children.  In re Milovich
   A presumption in favor of granting custody of a child to the mother solely on the basis of gender under such conditions should be condemned.  Kauffman v. Kauffman

Murder of Parent
   Where the father was convicted of voluntary manslaughter, not murder, of the mother of the children he sought custody of, and the trial court determined that the father was a fit and proper person for the custody of the children and that it was in the best interests of the children that they be placed with the father, the factors cited by the Supreme Court in, In re Abdullah, 85 Ill. 2d 406, 423 N.E.2d 915 (1983) support the finding that unfitness based upon depravity was not present in this case.  Tranel v. Lutgen
   Neither the legislature nor case law in Illinois has seen fit to set forth a rule of law that the killing of one parent by the other in the presence of the children, no matter what the circumstances, standing alone, is sufficient to deprive that parent of his or her children on the basis of unfitness.  Tranel v. Lutgen

Name Change
   In determining whether or not any restraint should have been put upon the plaintiff’s action in aiding a minor child to change his name, the first and most important consideration before the trial court should be the welfare of the child.  Solomon v. Solomon

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