What is a minor modification of parenting time not requiring a showing of substantial change in circumstances?
Published in Chicago Lawyer Magazine, July 2017
by Daniel R. Stefani
In the recent 4th District Opinion of In Re Marriage of Theresa O’Hare and Ronald Stradt, the Court gave us some insight as to the definition of “minor modification” in Section 610.5(e)(ii) of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) which became effective January 1, 2016.
Section 610.5(e)(ii) of the IMDMA states in relevant part that “the Court may modify a parenting plan or allocation judgment without a showing of changed circumstances if (i) the modification is in the child’s best interest; and (ii) the modification constitutes a minor modification in the parenting plan or allocation judgment.” In this case, the father filed a motion to modify his parenting time from 44% of the overall parenting time to 50% of the overall parenting time.
The mother filed a motion to dismiss, alleging that the father failed to allege a change in circumstances and the modification sought was not a minor modification as contemplated by Section 610.5(e)(ii) of the IMDMA. At the time of the hearing on the mother’s motion to dismiss, the child was then ten years of age.
The father’s motion stated that by increasing his parenting time by 6%, it constituted a minor modification of parenting time and that said minor modification was in the minor child’s best interest, provided greater stability and maximized the minor child’s relationship and access to both parents as intended by Section 602.10(g) of the IMDMA.
The trial Court thereafter granted the mother’s motion to dismiss, finding that “an additional overnight every fourteen days is not a minor modification” as contemplated by Section 5/610.5(e) of the IMDMA.
On appeal, the father contended that the trial Court failed to accept as true all well-pled facts and all reasonable inferences that may have been drawn from those facts. The mother responded by stating that the father had failed to provide a factual basis for his motion and instead asserted various conclusions. Specifically, the father alleged that the trial Court failed to accept as true his allegation that by increasing his parenting time by 6%, it constituted a minor modification of parenting time. The Appellate Court disagreed by stating that the allegation was a legal conclusion, not a fact, and that the Court was not required to accept this allegation as true and was at liberty to disregard the father’s interpretation of the statute.
The father then alleged that the trial Court failed to accept as true “reasonable inferences” such as “said minor modification is in the minor child’s best interest, provides greater stability and maximizes the child’s relationship and access to both parents”. The Appellate Court again disagreed, stating that said allegations were not legal conclusions and that the trial Court was free to accept or reject. The Court further stated that the allegations that the proposed modification would provide greater stability and maximize the child’s relationship and access to both parents were factual conclusions that were unsupported by specific factual allegations. Ultimately, the Appellate Court stated that the father failed to allege any specific facts supporting his motion.
The father then contended that the trial Court did not properly apply the rules of statutory construction when interpreting what he characterized as the “ambiguous” term “minor modification”. More specifically, the father argued that the term “minor modification” was a term susceptible to differing subjective interpretations. The Appellate Court disagreed by stating that the father’s request would change the parenting plan from one parent serving as the primary custodial parent to both parents having equal parenting time, and therefore, was not a “minor modification”.
The Appellate Court further supported its opinion by stating that their interpretation was consistent with the language of the statute in its entirety which, although amended in January 2016 to ease the ability to modify a parenting plan in certain situations, maintained a policy favoring the finality of the order outlining the original parenting plan. Therefore, the exception of a minor modification should be viewed as a very limited exception.
The Court pointed out that even though the father argued that his proposed modification would effectuate various statutory purposes, it still did not automatically mean that the proposed modification would be minor within the meaning of the new limited exception of Section 610.5(e).
This holding still leaves open the question of whether an overall 6% increase in parenting time would constitute a minor modification in circumstances where a 6% increase would result in no change in the primary custodial parent. As an example, in a situation where a parent has 30% of the parenting time, and asks for an increase to 36%, it still leaves open the question of whether such request could be a minor modification as the non-moving parenting would still retain a majority of the parenting time.