ISBA Statehouse Review for the week of July 10, 2014

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers the rewrite of the Illinois Marriage and Dissolution of Marriage Act (House Bill 1452). More information on the bill is available below the video.

House Bill 1452, rewrite of the Illinois Marriage and Dissolution of Marriage Act. (http://www.ilga.gov/legislation/98/HB/PDF/09800HB1452sam001.pdf)

Modification.  The general rule is that a motion to modify an order allocating parental responsibilities may not be made within two years of the order’s entry. There are three exceptions to this general rule.

(1) A court is required to modify a parenting plan or allocation judgment if necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence that:

• a substantial change of circumstances has occurred with the child or of any parent caused by facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated in the plan or judgment and that a modification is necessary to serve the child’s best interests;
• the child’s present environment seriously endangers the child’s mental, moral, or physical health or significantly impairs the child’s emotional development; or
• the parties stipulate to the modification.

(2) The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if it is in the child’s best interests and any of the following circumstances occur:

•  The modification is minor;   
• The modification reflects the actual arrangement under which the child has been living (without parental objection) for the six months preceding the filing of the petition for modification as long as the arrangement was given with meaningful consent;  
• The modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have approved or ordered if the court had been aware of the circumstances at the time of the order or approval; or
• The parties agree to the modification.  

A motion to modify an order allocating parental responsibilities may be made at any time by a party who has been informed of facts requiring notice to be given of abuse of allocated parenting time under § 607.5.

Relocation.  House Bill 1452 uses the term “relocation” instead of “removal” for a parent who wishes to move the child’s primary residence. Relocation is a substantial change of circumstances for modifying a judgment. A parent may seek relocation only if he or she has been allocated a majority of the parenting time with a child or equal parenting time with the child. It creates four classes of relocation for interstate and intrastate moves, which are as follows:

(1) If the child’s primary residence is in Cook, DuPage, Kane, Lake, McHenry, or Will counties, and relocation is sought for a new primary residence that is more than 25 miles away;

(2) If the child’s primary residence is in one of the other 96 counties other than Cook, DuPage, Kane, Lake, McHenry, or Will counties, and relocation is sought for a new primary residence within Illinois that is more than 50 miles away;

(3) If relocation is sought for a new primary residence outside Illinois that is more than 25 miles away; or

(4) If relocation is sought for a new primary residence outside Illinois that is no more than 25 miles away regardless of the county of the child’s current primary residence. (Neither notice to the other parent and judicial permission is required to make this move as long as Illinois continues to be considered the child’s home state and the Illinois court retains jurisdiction of the parties and the child.)

If a parent intends to relocate under § 600(g)(1), (2), or (3) above, the parent must provide at least 60 days’ notice to the other parent. The notice must contain at a minimum the intended date of relocation, address of the new address, and the intended length of relocation. If 60 days is impracticable, it must be given at the earliest date practicable or otherwise ordered by the court. The notice must be filed with the clerk of the court. If the non-relocating parent signs the notice, relocation is allowed without further court action.

If not, the relocating parent must file a petition seeking permission to relocate with these different procedures.

If the parties do reach an agreement, it requires the court to modify the parenting plan or allocation judgment to accommodate a parent’s relocation as agreed to by the parents, as long as the agreed modification is in the child’s best interests.

If there is no agreement, it requires the court to modify the parenting plan or allocation judgment to accommodate the relocation without changing the proportion of parental responsibilities between the parties, if practicable, as long as such a modification is in the child’s best interest.

If a parent’s relocation makes it impracticable to maintain the same proportion of parental responsibilities between the parties, the court shall modify the parenting plan or allocation judgment in accordance with the child’s best interest. The court shall consider 12 different criteria in determining the child’s best interest.

Unless the non-relocating parent demonstrates that a reallocation of parental responsibilities is necessary to prevent harm to the child, the court must deny the non-relocating parents request for a reallocation of parental responsibilities based on relocation if the non-relocating parent either:

(1) failed to object to the relocation within the time allowed; or

(2) has substantially failed or refused to exercise the parental responsibilities allocated to him or her under the parenting plan or allocation judgment.