Ask A Lawyer: How Do We File a Modification of Custody/Visitation?

Question:

My boyfriend and I seem to be stuck in the long process of court with his ex over the custody and visitation of his two children. We are going on four years now, and we have learned a lot about the legal process. We will retain a lawyer as the court dates get closer, but we prefer to handle submitting "responses" to her complaints on our own to try & save money.

I doubt the court will grant my boyfriend more visitation based upon the instability of his ex, but we wanted to try since we have to file an answer anyway. My boyfriend’s oldest will be going into 4th grade this year and we have learned (from the kids) that they are moving. So she will be changing their schools again. This will be four schools in four years! They are not moving because of military, work relocation, or any normal reason. If we wanted to file to request a modification of custody/visitation because of this, how would you recommend we go about it?

 

Answer:

Proceeding to court on any matter without a lawyer, particularly if opposing party has counsel, is usually a major risk.  While the logic of the situation may be apparent, the legal process is not without technical issues that the court must address.  Retaining an attorney at the last minute to provide the bare minimum representation may be sufficient for a minor legal matter, however custody and visitation issues generally require an experienced family law attorney to prepare for and argue the details of the case.  In many states, parties may be precluded from coming back to court for a period of time after a custody or visitation ruling such that failure to properly pursue the case now may limit future review.

While the specifics of your case will dictate how the case should be pursued, generally if either party wishes affirmative action by the court that party must file an appropriate pleading seeking relief.  The other party may then have an opportunity to file a responsive pleading such as an Answer.  The various legal steps may be in one document or separate documents depending upon applicable law and local court rules.  Your description of the case indicates the ex has filed a pleading to which your boyfriend wishes to respond as well as to file his own pleading upon which the ex will have an opportunity to respond.

The specific pleading your boyfriend may wish to file will depend upon the facts surrounding the current situation and the history of the case.  As you advise that the case has been going on for four years, there would appear to be significant history that will affect how the case proceeds.  As with any custody or visitation issue, the primary consideration will be the best interests of the children, which can include a comparison of the circumstances of the two parents or a review of the parental failings of one parent.  If your boyfriend wishes to pursue custody or primary parenting time for his children, he should retain an attorney to review the case and advise him as to his options.

 

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues. 

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