Category: Divorce
6.6.25
Category: Child Custody
Written by M.K. Clayton on 7.15.25
When the Illinois Department of Children and Family Services (DCFS) begins investigating a parent for alleged abuse or neglect, it’s a serious situation — especially when children are involved. If your ex is under investigation by DCFS, you may be wondering if you can take full custody to protect your child’s well-being.
Though “custody” is a commonly known term for which parent has physical possession of children in a divorce or parentage case, Illinois amended its statutes in 2016 to remove “custody” and now refer to this concept as “allocation of parental responsibilities.” This concept includes both parenting time (aka physical possession of the children) and parental decision-making. During a divorce, parties will often enter into temporary agreements on parenting time and parental decision making, memorialized by court orders. To finalize a divorce, parties with children under age 18 must have a formal parental allocation judgment (sometimes known as a parenting agreement) entered along with their divorce decree.
This blog post will help you understand when and how parenting agreements and parental allocation judgments can be modified in Illinois during and after a divorce, and what to expect if you’re seeking full custody while your ex is being investigated by DCFS.
DCFS investigates reports of child abuse, neglect, or endangerment. 325 ILCS 5/1-1 et seq. Not every investigation leads to findings of wrongdoing, but the fact that a report was serious enough to warrant an investigation may be cause for concern — especially if you believe your child’s safety is at risk.
DCFS has the authority to recommend services, implement safety plans, and, in serious cases, remove a child from a parent’s care. However, a DCFS investigation alone does not automatically change parenting time or decision-making responsibilities — only a court can do that.
Potentially, yes — but with some important caveats.
In Illinois, courts prioritize the best interests of the child in any decision to implement or modify an allocation of parental responsibilities. 750 ILCS 5/602.5; 750 ILCS 5/602.7. If there is credible evidence that your ex poses a risk to your child — whether due to abuse, neglect, substance abuse, or mental health concerns — the court may consider modifying your current parenting plan or parental allocation judgment. In re Marriage of Vega and Lopez, 2024 WL 140328 (Ill.App. 2 Dist.).
However, courts do not act on suspicion alone. You must file a petition to modify the existing order and provide sufficient evidence showing that a change is warranted. 750 ILCS 5/610.5.
If your divorce is still pending, it is likely that you will have a temporary parenting plan in place. These are contained in a court order. If DCFS starts an investigation and you need to take physical possession of your children to protect their safety, you must file a motion to modify the court order that outlines your temporary parenting plan. This can be done on an emergency basis as well. The motion must be supported by evidence, such as documentation from the DCFS investigation. A hearing will be scheduled, during which both parties can present their arguments. Courts generally aim to maintain continuity for the child, so the burden is on the requesting parent to show that the proposed changes serve the child’s best interests – in this case by removing them from the credible threat of abuse or neglect. 750 ILCS 5/602.5; 750 ILCS 5/602.7.
Once your divorce is finalized, the parenting plan or parental allocation judgment entered with your divorce decree controls over any temporary parenting agreements in place during the divorce proceeding. Under Illinois law, parenting plans and parental allocation judgments (which include parenting time and decision-making authority) can be modified under certain conditions. The law provides for both routine modifications and emergency or substantial change modifications.
The most common legal basis for modifying a parenting plan is a substantial change in circumstances affecting the child or either parent. 750 ILCS 5/610.5. A DCFS investigation could qualify as such a change, especially if it results in a finding of abuse or neglect, or if safety concerns escalate during the investigation.
Other examples of significant changes include:
Even in the absence of a major change, the court may modify parenting time if doing so serves the child’s best interests. 750 ILCS 5/610.5. The court will evaluate multiple factors, including:
750 ILCS 5/602.7(b). If a DCFS investigation reveals that a parent may be putting the child in danger, this could strongly support a motion to modify custody in favor of the other parent. Vega, 2024 WL 140328.
In urgent situations, you may file for emergency relief in the form of a temporary modification. This is typically done through a Petition for Emergency Allocation of Parental Responsibilities. The court can issue a temporary order limiting or suspending parenting time if the child is believed to be in immediate danger.
This type of relief is especially useful when DCFS has substantiated claims of abuse or has temporarily removed the child from your ex’s care.
In the case In re Marriage of Vega and Lopez, a Mother and Father got divorced. Initially, the court awarded Mother sole decision-making responsibility and majority parenting time, subject to limited visitation with the Father. Less than a year into this arrangement, one of the children was badly burned while in Mother’s care. DCFS opened an investigation and, scared for his children’s safety, Father filed an emergency petition for modification of parental responsibilities. The DCFS investigation was initially “founded,” meaning DCFS concluded there was credible evidence of child abuse or neglect. The trial court granted Father’s petition, allocating him sole decision-making responsibilities and sole physical possession of the children. Mother was allowed supervised visits.
Though the DCFS investigation was initially founded, it was later voluntarily dismissed following Mother’s administrative appeal. Mother then appealed the trial court’s modification order. The appellate court denied her appeal. It found that the trial court considered each of the factors set forth in 750 ILCS 5/602.7(b) and referenced the trial court’s concern with Mother’s credibility. The trial court’s analysis of the factors was in fact rooted in the evidence and the appellate court affirmed the decision to modify parental custody and responsibilities.
This case demonstrates the Court’s concern for the best interests of children involved in these cases over any procedural argument that Mother had. The trial court rested its decision on the evidence, including the DCFS report finding credible evidence of child abuse and neglect.
If your ex is under DCFS investigation, it’s natural to be concerned — and proactive steps may be necessary to protect your child. That said, the legal system requires evidence, not just suspicion. Even if the situation feels urgent, you must go through the proper legal channels.
An attorney can help you understand the strength of your case, assist in gathering documentation (including DCFS records), and advocate for your child’s best interests in court.
If you believe your child is in immediate danger, don’t wait — speak with an attorney and consider filing for emergency relief. Contact O. Long Law, LLC to schedule a confidential consultation with one of our experienced Illinois family law attorneys.