IICLE Family Law Flash Points - July 2022

Trial Court’s Denial of Expansion of Parenting Time for Father Upheld

In In re Marriage of Trapkus, 2022 IL App (3d) 190631, a postjudgment matter, the father requested a modification to the parenting schedule on the grounds that the children were now older and both children expressed a desire to spend more time with him. The trial court denied his motion, and the father appealed. The appellate court upheld the trial court’s decision and in doing so addressed the appropriate statute section to apply when analyzing the issue. Section 610.5(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., specifically provides for a petition for modification of parenting time to proceed upon a showing of changed circumstances that necessitates modification to serve the best interests of the child. Once the case proceeds to an evidentiary hearing, the applicable legal standard for modifying the parenting schedule is contained in §610.5(c), which provides in pertinent part:

The court shall modify a . . . judgment when necessary to serve the child’s best interests if the court finds . . . that on the basis of facts that have arisen since the entry of the existing . . . judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests. 750 ILCS 5/610.5(c).

In ruling on the substantive merits, the court noted that the father cited no law to support his claim that a child aging and expressing a desire to spend more time with another parent supports a substantial change of circumstances. The court also noted that the children were ages 6 and 9 when the original judgment was entered, they were 11 and 13 at the time the father filed his petition for modification, and the children’s aging was a fact that was anticipated at the time of entry of the judgment. The court was careful to note that its holding did not mean that that the aging of children or their expressed wishes could never constitute a substantial change of circumstances but that it did not in this case. The court relied on the intense history of animosity between the parties and the fact that the father had not demonstrated at trial that the animosity had decreased, which would make a schedule closer to 50/50 practically possible.

Trial Court’s Modification of Holiday Schedule Reversed

In a postjudgment parenting time modification proceeding filed by the father in Trapkus, supra, in which there was a clear history of intense animosity between the parties and the mother had the majority of parenting time, the trial court modified the parties’ holiday schedule pursuant to §610.5(e) of the IMDMA, which provides that the court can modify a judgment in the absence of changed circumstances if (1) the modification is in the best interests of the child and (2) one of four enumerated circumstances is present. The father appealed the ruling, which resulted in less parenting time for him, and the appellate court reversed. The court noted that the trial court did not make a determination of which specific enumerated circumstance set forth in §610.5(e) was present, and therefore the appellate court assumed it had to be the circumstance that “the modification constitutes a minor modification.” 2022 IL App (3d) 190631 at ¶39. However, the modifications were not minor in that the trial court eliminated Veterans Day, Columbus Day, and the Saturday and Sunday following Thanksgiving, which all reduced the father’s parenting time. The court also found that while the split parenting time on Christmas Eve/Day and New Year’s Eve/Day could create logistical problems for the parties, it was a significant change for the children to go from seeing both parents on each holiday to seeing only one parent on each holiday.