Modification of custody within two years after Davis By Scott C. Colky

On October 21, 1998, a new client comes into your office and tells you that 14 months ago he and his ex-wife entered into a joint parenting agreement. The children live with her and he sees them every other weekend, vacations, and alternate holidays. He is remarried, has a good job, and a new house.

The week before, your client received a phone call from a man who indicated that he had been involved with your client's former wife for the last eight months. He told your client that during that time period his ex-wife would use cocaine, and had left the children, ages six and eight, alone to go out drinking with him. The boyfriend reported that the client's ex-wife had both an alcohol problem and a cocaine problem and that he believed she was mentally unstable. The boyfriend was prepared to sign an affidavit and testify if necessary. However, the boyfriend told the client that the previous day your client's ex-wife obtained an order of protection against the boyfriend, and that he had a prior felony conviction for delivery of controlled substance.

You explain to your client that in order to modify a custody judgment within two years from the date it was entered, he must be able to allege and prove by clear and convincing evidence that the children's present environment may seriously endanger their physical, mental or emotional health. You tell your client that based on what he has told you, there may not be sufficient evidence to prove serious endangerment by clear and convincing evidence.

The next day, the Supreme Court of Illinois decides the Department of Public Aid ex rel. Lindy Davis v. Jesse Brewer. As a result, you call your client and tell him it's time to file a petition for modification of custody. (183 Ill.2d 540, 702 N.E.2d 563, 234 Ill.Dec. 223 (October 22, 1998.)

Modification of custody is set out in section 610 of the Illinois Marriage and Dissolution of Marriage Act as follows:

Section 610. Modification. (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.

(c) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

With few exceptions, the appellate courts have held that if a custody modification is brought within two years of the custody judgment, the petitioner must allege and prove by clear and convincing evidence that:

1) the child is seriously endangered in the present environment;

2) there has been a substantial change in circumstances warranting modification of the prior custody order; and

3) the proposed modification is in the best interest of the child.

Illinois Appellate Courts have held that "the effect of Section 610(a) of the Marriage Act is that even if the non-custodial parent would perhaps be a better parent for the child, custody will not be modified within two years of the date of the custody order unless the child is seriously endangered." In re: the Marriage of Clark, 149 Ill.App.3d 613, 500 N.E.2d 1092 (3rd Dist. 1986); Naylor v. Kindred, 250 Ill.App.3d 997, 620 N.E.2d at 520, 525 (4th Dist. 1993).

Courts have cited the following comments from the Uniform Marriage and Divorce Act regarding section 610(a):

Most experts who have spoken to the problems of post divorce adjustment of children believe that insuring the decree's finality is more important that determining which parent should be the custodian...This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child's interest...Any change in the child's environment may have an adverse effect, even if the non-custodial parent would better serve the child's interest. (9A U.L.A., Section 409, Comment at 628-29 (1987), Naylor at 525.)

The same year the Fourth District issued its opinion in Naylor, which clearly sets forth the traditional interpretation of 610(a)(b), the appellate court in the First District decided In re: the Marriage of Oehm, 252 Ill.App.3d 311, 625 N.E.2d 34 (1st Dist. 1993). The appellate court in Oehm read section 610(a)(b) literally and ruled that once a court has reason to believe that the children's present environment may endanger seriously their physical, mental or emotional health, then the court was entitled to conduct a hearing on the requested modification to determine what would be in the best interest of the children.

The Illinois Supreme Court found the appellate court's decision in Oehm persuasive, in reversing the appellate court in Davis v. Brewer, 292 Ill.App.3d 416, 685 N.E.2d 1010, 226 Ill.Dec. 555 (5th Dist. 1997).

The supreme court, like the appellate court in Oehm, found section 610(a)(b) of the Illinois Marriage and Dissolution of Marriage Act to be plain and unambiguous. The court felt the statute was so clear that it would be given effect without resorting to other aids of construction.

The supreme court read 610(a) and (b) to establish a dual step process for modification petitions filed and tried within two years of the last custody judgment. The first step is the filing of a petition for modification with attached affidavits. The court must then find that the affidavits submitted by the petitioning parent establish a reason to believe that the child's present environment may endanger seriously his physical, moral or emotional health. The supreme court stated that this first step of filing the petition with affidavits and having the court make a threshold finding "of a reason to believe endangerment exists" is procedural in nature. If the procedural requirements are met, the trial court then proceeds to a hearing based on the legal standards of section 610(b), "the child's best interest."

The plain language of sub-section (b) applies to all petitions, regardless of whether they are filed and heard before or after two years from the date of the entry of the custody judgment. In order for any prior custody judgment to be modified, sub-section (b) requires the court to find by clear and convincing evidence, based upon facts that have arisen since the prior custody judgment or that were unknown to the court at the time of that judgment, that: (1) "a change has occurred in the circumstances of the child or his custodian," and (2) that the modification is necessary to serve the best interest of the child." 750 ILCS 5/610(b) (West 1996). Davis at 566.

The court's decision is an anomaly in the law. Procedurally, a petitioner is required to plead in affidavits facts which if proven would establish the children are seriously endangered. The court then states that the petitioner does not need to prove the facts pleaded, or the elements of their case. Instead, the court requires that petitioner prove it is in the best interests of the children that they should be in petitioner's custody. Where else in the law are you allowed to plead facts that you need not prove?

More importantly, one must consider how the supreme court addresses the public policy considerations of stability and finality, in Davis, that have long been the basis of court rulings regarding sec. 610(a) and (b).

The supreme court stated:

Although stability in a child's life is an important goal, it would make little sense to provide a "safety valve" for emergency situations so strict as to defeat its very purpose. We note that this holding does not undermine the policy of custodial stability while promoting the best interests of the child. In addition, the policy goal of assuring continuity for the child and avoiding "ping pong" litigation in custody disputes is further satisfied by subsection (c) of Section 610, which provides that "attorney fees and costs shall be assessed against a party seeking modification if the Court finds that the modification action is vexatious and constitutes harassment." 750 ILCS 5/610(c) (West 1996). This provision provides a strong deterrent to those persons who would plan to seek custody modification solely as a form of harassment against the other parent. Davis.

The prospect of a court awarding attorney fees and costs against a parent who has a good faith best interest argument for custody seems a "remote possibility." More likely, petitions for modification will be "spun" to emphasize endangerment, giving parents with resources a second chance at making their best interest case.

The legislature must take a new look at issues raised by this case, including whether public policy should require stability and finality for children to rise to a level that means they are not in the care of the best custodian, or whether best interests of children should always be the final measure.