seeking only to modify parenting time and not the parenting plan or allocation judgment
How later courts described this case
- seeking only to modify parenting time and not the parenting plan or allocation judgment
Written by the judges who cited it.
The opinion
2025 IL App (2d) 240028
No. 2-24-0028
Opinion filed November 24, 2025
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
NANCY REYNOLDS, ) Appeal from the Circuit Court
) of McHenry County.
Petitioner-Appellee, )
)
v. ) No. 16-FA-130
)
CHRISTOPHER I. REYNOLDS, SR., ) Honorable
) Robert J. Zalud,
Respondent-Appellant. ) Judge, Presiding
______________________________________________________________________________
JUSTICE MULLEN delivered the judgment of the court, with opinion.
Justice Schostok concurred in the judgment and opinion.
Justice Birkett dissented, with opinion.
OPINION
¶1 Respondent, Christopher I. Reynolds, Sr., appeals the judgment of the circuit court of
McHenry County granting a directed finding in favor of petitioner, Nancy Reynolds, on
respondent’s amended motion to modify the allocation of parental responsibilities and parenting
time. 1 Respondent argues that the trial court erred by applying the wrong legal standard to his
request for increased parenting time with the parties’ children. We vacate and remand with
directions.
1
Although titled otherwise, respondent’s amended motion sought only a modification of parenting
time.
2025 IL App (2d) 240028
¶2 I. BACKGROUND
¶3 The parties never married and have two daughters together: D.R., born in 2012, and E.R.,
born in 2014. On April 13, 2016, the Department of Healthcare and Family Services filed suit to
establish proper child support for the two children, which resulted in a June 10, 2016, support
order. At that time, the parties’ relationship was apparently quite rancorous, with petitioner
obtaining a June 21, 2016, ex parte emergency order of protection, and respondent, on June 23,
2016, moving to vacate the order claiming the allegations supporting it were false. On June 28,
2016, the trial court granted respondent supervised visitation with the children.
¶4 On July 1, 2016, petitioner filed a petition to establish the allocation of parental
responsibilities. On July 7, 2016, the parties entered into an agreed parental allocation judgment,
designating petitioner as the legal custodian of the children and assigning her the significant
decision-making responsibilities, including education, health care, and religious upbringing. The
parties agreed that respondent’s parenting time consisted of weekly overnight visitation Monday
evening through Tuesday morning and alternating weekends on Friday through Sunday. The
parties were required to exchange the children at a restaurant in Algonquin. Respondent was not
allowed to pick up or drop off the children at their school. Also on July 7, 2016, the parties entered
an agreed order vacating the order of protection.
¶5 Five years later, on August 23, 2021, petitioner filed a petition to modify child support and
contribution to child-related expenses based on the belief that respondent’s income had
significantly increased. The parties were ordered to mediation to discuss modification of parental
responsibilities and economic issues, but they were unable to reach an agreement.
¶6 On November 18, 2021, respondent filed a motion to modify the allocation of parental
responsibilities and parenting time. Respondent sought primary custody of the children, sole
significant decision-making authority, increased parenting time, and adjustments to child support
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2025 IL App (2d) 240028
and other financial issues based on any modifications made. The case progressed, and the motion
to modify was scheduled for hearing in May 2023.
¶7 On May 11, 2023, respondent filed his amended motion to modify, which sought only an
increase in his parenting time. Respondent brought his motion pursuant to sections 602.7 and 610.5
of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602.7, 610.5 (West
2022)) without identifying any applicable subsection. In summary, respondent sought to pick up
the children directly from school on his weekly Monday overnights and drop them off at school
Tuesday mornings, and to extend his alternating weekends from Thursday after school until the
drop-off at school Tuesday mornings. Respondent withdrew all requests to modify the allocation
of parental responsibilities.
¶8 On May 17, 2023, the hearing on respondent’s petition began and continued through dates
in July and September 2023. Mark Goldstein, respondent, the guardian ad litem, and Krystal
Reynolds (respondent’s fiancée) testified during respondent’s case-in-chief about both the changes
in circumstances and the children’s best interests. Additionally, respondent’s initial first-chair
counsel withdrew following the May hearing, and this caused a delay until the hearing resumed in
July.
¶9 On September 7, 2023, respondent filed a memorandum of law supporting his amended
motion to modify and rested his case-in-chief. Then, petitioner orally moved for a directed finding.
Petitioner argued that respondent had failed to present a substantial change in circumstances that
required a modification in parenting time to serve the children’s best interests. In response,
respondent first argued that he had “made a strong case with the evidence that we have that there
has been since 2016 a very substantial change of circumstances or facts that were unknown at the
time of the 2016 order.” Shortly later, he quoted section 610.5(a) of the Act (id. § 610.5(a)), stating
that “[p]arenting time may be modified at any time, without a showing of serious endangerment,
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2025 IL App (2d) 240028
upon a showing of changed circumstances that necessitates modification to serve the best interests
of the child.” Respondent emphasized the changes in circumstances, including that the children
had aged and he had begun full-time remote work allowing him the flexibility to spend more time
with the children. Respondent then turned to evidence impacting the children’s best interests,
focusing on the acrimony between petitioner and respondent and how eliminating in-person
exchanges between the current Sunday evening drop-off and the Monday overnight would serve
their interests. At this point, before respondent had concluded his remarks, the trial court continued
the argument on petitioner’s motion for a directed finding. The hearing was continued to October
17, 2023, but because respondent’s counsel left the firm, the hearing was delayed again until
November 23, 2023, when the hearing substantively resumed.
¶ 10 Following argument, the trial court issued an oral ruling granting the motion for directed
finding:
“On a motion for directed finding, at the close of a petitioner’s case on a case that
is—that will not go in front of a jury and is a civil matter, it’s a two-step process for the
Court. Court determines first whether or not the petitioner has established a prima facie
case of what they need to establish. In this case it’s whether or not they’ve proven [a]
substantial change in circumstances *** since the entry of the [July 7, 2016,] Allocation
Judgment, then the Court addresses whether or not the modification is necessary to serve
the child’s best interest. If they have established a prima facie case, the Court then goes to
a second stage on determining whether or not at this stage, having considered the weight,
quality of the evidence, having considered the credibility of the witnesses whether or not
they’ve met their burden at this stage.
There has been testimony that there have been changes since July of 2016. There’s
been some testimony by expert witnesses in this case regarding whether or not a
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2025 IL App (2d) 240028
modification would be necessary to serve the child’s best interest. There has been a
prima facie case established in this case. The Court then goes to the second stage, whether
or not it’s been proven by a preponderance of the evidence [under section 610.5(c) of the
Act].
***
The Court cannot consider best interest prior to considering [whether a substantial
change in circumstances has been proved]. If I find that a substantial change in
circumstances has not occurred, the Court does not consider the modification on whether
or not it is necessary to serve the child’s best interest.
***
[The trial court analyzed the specific evidence presented during the hearing.]
It has been proven there have been changes. Legislature put the word substantial
there for a reason. It’s not been proven of [sic] this Court by a preponderance of the
evidence when I consider all of the evidence in this case. And when I consider all of these
changes, there’s a number of them who testified to [sic], even when I consider them in the
totality of all the changes together, it’s still not a substantial change in this case, a
substantial change in circumstances since [July 7, 2016].
***
As a result, [respondent] has not met their [sic] burden of proof at this stage. The
motion for directed finding is granted.”
The trial court entered a written order granting petitioner’s motion for directed finding and denying
respondent’s motion to modify, and it ordered the parties to prepare to resolve petitioner’s pending
motion to modify child support. We also note that, in granting the motion for directed finding, the
court did not make any assessment of the evidence concerning the children’s best interests.
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¶ 11 On December 28, 2023, petitioner filed a notice of appeal notwithstanding the remaining
matters pending before the trial court. On January 10, 2024, respondent filed a motion seeking a
finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). On January 17, 2024,
the court granted respondent’s motion and made the findings pursuant to Rule 304(a). On January
18, 2024, respondent filed a timely notice of appeal pursuant to Rule 304(a).
¶ 12 II. ANALYSIS
¶ 13 A. Application of Rule 311
¶ 14 We initially comment on the timing of the issuance of this opinion. For the first time in her
response brief, petitioner raised as part of her argument the question of whether this case should
have been accelerated as subject to expedited disposition under Illinois Supreme Court Rule
311(a)(5) (eff. July 1, 2018). Rule 311(a)(5) requires the appellate court to issue its decision within
150 days after the filing of a notice of appeal, except for good cause shown. Respondent argues
that because this appeal concerns parenting time, it is not subject to accelerated disposition.
¶ 15 Respondent filed his initial notice of appeal on December 28, 2023, and an amended notice
of appeal on January 18, 2024. Thereafter, respondent sought relief from the briefing schedule
numerous times, and the matter was heard at oral argument on July 24, 2025. An earlier date for
oral argument was continued at petitioner’s request and without objection.
¶ 16 Rule 311(a) mandates accelerated disposition of appeals from final or interlocutory orders
concerning “child custody or allocation of parental responsibilities cases or decisions allowing or
denying relocation.” Ill. S. Ct. R. 311(a) (eff. July 1, 2018). Rule 311 does not define the term
“parental responsibilities.” Supreme court rules are interpreted in the same manner as statutes.
People v. Roberts, 214 Ill. 2d 106, 116 (2005). “The primary objective is to ascertain and give
effect to the rule’s drafters’ intent, the surest and most reliable indicator of which is the language
of the rule itself, given its plain and ordinary meaning.” People v. Dominguez, 2012 IL 111336,
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2025 IL App (2d) 240028
¶ 16. In determining the plain meaning of the rule’s terms, we should consider the rule “in its
entirety, keeping in mind the subject it addresses and the apparent intent of the [drafters] in
enacting it.” People v. Perry, 224 Ill. 2d 312, 323 (2007).
¶ 17 The rule was originally enacted to “expedite the resolution of appeals affecting the care
and custody of children” and “to promote stability for *** children whose custody is an issue ***
by mandating swifter disposition of [those] appeals.” Ill. S. Ct. R. 311(a), Committee Comments
(rev. Feb. 26, 2010). The committee comments also acknowledge that the Act now utilizes
different terminology than its predecessor, and the rule was amended to reflect those changes. Ill.
S. Ct. R. 311(a), Committee Comments (rev. Mar. 8, 2016).
¶ 18 While Rule 311 itself does not define “parental responsibilities cases,” according to the
Act, parental responsibilities “means both parenting time and significant decision-making
responsibilities with respect to a child.” 750 ILCS 5/600(d) (West 2022). Nothing in the rule
suggests that the subject of this appeal, parenting time, would be treated differently than the rule
would treat significant decision-making responsibilities. We read Rule 311(a) to require expedited
disposition of appeals concerning parenting time.
¶ 19 This reading is consistent with provisions of Illinois Supreme Court Rule 900(a), (b)(1)
(eff. Mar. 8, 2016), which require the trial court to expedite cases involving “allocation of parental
responsibilities,” which is specifically defined to include “visitation” or “parenting time.” We also
note the worthy goal of Rule 311—to promote stability for children by mandating swifter
resolutions in these disputes. “[I]t is in the best interests of children to have a healthy and close
relationship with both parents, as well as with other family members, and thus the visitation rights
of the non-custodial parent should be carefully considered.” (Internal quotation marks omitted.)
In re Marriage of Krivi, 283 Ill. App. 3d 772, 777 (1996). If the case concerns parenting time, then
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2025 IL App (2d) 240028
it makes sense to expedite any appeals concerning modification as we would any other similar
child-related issues. We think the supreme court intended Rule 311 to apply to parenting time.
¶ 20 In view of our holding, we point out that neither party, including petitioner, who has
brought the issue to our attention, complied with Rule 311’s requirement of a special caption on
the notice of appeal (and on every pleading brief and motion that follows) to state: “THIS APPEAL
INVOLVES A MATTER SUBJECT TO EXPEDITED DISPOSITION UNDER RULE 311(a).”
Ill. S. Ct. R. 311(a) (eff. July 1, 2018). Further, we are compelled to advise both parties that, despite
any controversy about whether the rule applied here, any party can request acceleration, upon good
cause shown. Ill. S. Ct. R. 311(b) (eff. July 1, 2018). Respondent’s original error concerning the
rule was compounded by his untimely briefing and contributed to this regrettable delay. We
admonish the parties’ attorneys not to let such an error occur again. Given all this, we find good
cause exists for issuing our decision more than 150 days after the filing deadline. See In re
Marriage of Katsap, 2022 IL App (2d) 210706, ¶ 95.
¶ 21 B. The Legal Standard Regarding Parenting Time
¶ 22 We now turn to the substance of this appeal. Respondent argues that the trial court erred in
applying the “substantial change” standard to his motion to modify parenting time and, thus,
granting petitioner’s motion for a directed finding.
¶ 23 1. Standards Governing Motions for a Directed Finding
¶ 24 We begin with the standards governing the review of the trial court’s judgment on a motion
for directed finding. A court assesses a motion for directed finding in a two-step process. In re
Marriage of Larsen, 2023 IL App (1st) 230212, ¶ 121. In the first step, the court determines
whether the plaintiff or nonmoving party has presented a prima facie case as a matter of law. Id.
To demonstrate a prima facie case, the nonmoving party must present at least some evidence of
every element of the underlying cause of action. Id. If the nonmoving party has failed to meet its
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2025 IL App (2d) 240028
burden, the court must grant the motion and enter judgment in favor of the defendant or moving
party. Id. Such a determination presents a question of law, and we review de novo the court’s
ruling, performing the same analysis as the court below. Id.
¶ 25 If, however, the nonmoving party has met its burden of presenting a prima facie case, the
trial court moves on to the second step. Id. ¶ 122. In this step, the court considers all the evidence
presented, weighing the evidence, determining the credibility of the witnesses, and making all
reasonable inferences arising from the evidence. Id. 2 By weighing the evidence, some of the
evidence presented by the nonmoving party may be negated. Id. After weighing all the evidence
(with the possible negation of some of it), the court must determine whether there remains
sufficient evidence to establish the nonmoving party’s prima facie case. Id. ¶ 123. If sufficient
evidence establishing the prima facie case remains, the court should deny the motion for directed
finding and proceed with the trial; if the prima facie case no longer can be established, the court
should grant the motion and enter judgment in favor of the moving party. Id. The court’s ruling on
a motion for directed finding granted at the second step is reviewed to determine whether it was
against the manifest weight of the evidence. Id.
¶ 26 2. The Applicable Statutory Framework for a Request to Modify
¶ 27 Respondent’s amended motion to modify asked the court to increase his parenting time.
The motion to modify was brought under section 610.5 of the Act (750 ILCS 5/610.5 (West 2022)),
2
We note that the directed finding analysis differs from the directed verdict analysis because, where
the court is proceeding without a jury, it weighs the evidence as described, but where the court is proceeding
with a jury, it applies the Pedrick standard (see Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494 (1967)),
and considers the evidence in the light most favorable to the plaintiff or nonmoving party. See Larsen, 2023
IL App (1st) 230212, ¶ 122.
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which governs judicial modification of parental responsibility allocations. We examine the
pertinent statutory provisions before turning to respondent’s contentions on appeal.
¶ 28 Section 610.5 provides, relevantly:
“(a) Unless by stipulation of the parties or except as provided in Section 603.10 of
this Act, no motion to modify an order allocating parental decision-making responsibilities,
not including parenting time, 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 or her mental, moral, or physical
health or significantly impair the child’s emotional development. Parenting time may be
modified at any time, without a showing of serious endangerment, upon a showing of
changed circumstances that necessitates modification to serve the best interests of the child.
(b) (Blank).
(c) Except in a case concerning the modification of any restriction of parental
responsibilities under Section 603.10, the court shall modify a parenting plan or allocation
judgment when necessary to serve the child’s best interests if the court finds, by a
preponderance of the evidence, that on the basis of facts that have arisen since the entry of
the existing parenting plan or allocation 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.” Id.
¶ 29 3. Correct Legal Standard
¶ 30 In resolving the motion for directed finding, the trial court decided that, while respondent
had presented a prima facie case regarding substantial change, he had not met his burden of
demonstrating a substantial change in circumstances after the court had considered and weighed
all the evidence. On appeal, respondent argues the trial court used the wrong legal standard
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2025 IL App (2d) 240028
throughout—all he needed at the time of the motion for directed finding was to demonstrate that a
simple change in circumstances had occurred. Respondent contends that the correct legal standard
is contained in the plain and unambiguous language of the Act and that subsection (a) of section
610.5 of the Act, not subsection (c), governs situations in which a party has only requested a
modification of parenting time.
¶ 31 To determine which standard applies to this case, we must interpret the relevant provisions
of the enactment. Statutory interpretation presents a legal question that we review de novo,
performing the same analysis that the trial court would perform. Haage v. Zavala, 2021 IL 125918,
¶ 41. The primary objective of statutory construction is to ascertain and give effect to the
legislature’s intent and the most reliable indicator of that intent is the language of the statute given
its plain and ordinary meaning. Id. ¶ 44. “In determining the plain meaning of statutory terms, we
consider the statute in its entirety, the subject it addresses, and the apparent intent of the legislature
in enacting it.” Blum v. Koster, 235 Ill. 2d 21, 29 (2009). If the language is clear and unambiguous,
then it should be applied as written and without resort to additional aids of construction. Village of
Lincolnshire v. Olvera, 2025 IL 130775, ¶ 19.
¶ 32 Applying these principles to subsections (a) and (c), we see that subsection (a)
distinguishes between parental decision-making responsibilities, which it addresses in its first
sentence, and parenting time, which it addresses in the second sentence. 750 ILCS 5/610.5(a)
(West 2022). Subsection (a) limits motions to modify allocations of “parental decision-making
responsibilities, not including parenting time,” made within two years after entry to those meeting
certain requirements. (Emphasis added.) Id. On the other hand, parenting time may be modified at
any time upon a showing of (1) “changed circumstances” that (2) “necessitates modification to
serve the best interests of the child.” Id. Subsection (c) deals with the requirements to secure a
modification of “a parenting plan or allocation judgment” and it does not mention parenting time.
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2025 IL App (2d) 240028
Id. § 610.5(c). To receive a modification of a parenting plan or allocation judgment, a requesting
party must convince the trial court by a preponderance of the evidence that (1) “a substantial
change has occurred in the circumstances of the child or of either parent,” and (2) “modification
is necessary to serve the child’s best interests.” Id. The language of each subsection is clear and
unambiguous. We therefore hold that, in light of the clear and unambiguous language, we must
apply each subsection as written. Olvera, 2025 IL 130775, ¶ 19.
¶ 33 The placement in separate subsections of different categories of modifications—parenting
time in section 610.5(a) of the Act and parenting plans or allocation judgments in section 610.5(c)
of the Act—underscores an important difference between the standards applicable to each type of
modification. A modification of parenting time requires only “changed” circumstances, while a
modification of the parenting plan or allocation judgment requires a “substantial change” in
circumstances. It is well settled that, where the legislature uses certain language in one instance
and different language in another, different meanings or results were intended. Illinois State
Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 28. Additionally, we
cannot, under the guise of statutory construction, declare that the legislature did not mean what the
plain language of the statute says, and we may not add provisions or limitations to the statute the
legislature did not include. Id. Based on these principles, the second sentence of subsection (a)
governs the burden of proof regarding requests to modify parenting time, and subsection (c) does
not. It governs requests to modify parenting plans or allocation judgments. 3
3
This case does not present a situation in which a modification to parenting time is requested as
part of a larger request to modify a parenting plan or an allocation judgment, and we do not comment on
whether such an embedded request would be subject to only a simple change in circumstances or a
substantial change in circumstances.
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¶ 34 Our conclusion is supported by our recent, unpublished decision of In re Marriage of Salbi,
2024 IL App (2d) 240322-U, ¶¶ 66-72, which addressed this issue. We noted that section 610.5(a)
of the Act specifically addressed parenting time and expressly provided only a simple change in
circumstances was needed for a modification of parenting time. Id. ¶ 70. We reasoned that had the
legislature intended for a higher standard to apply to such a request, it could have employed
language requiring a “substantial change in circumstances,” as it did in subsection (c). Id.
¶ 35 Salbi also declined to follow the only published authority addressing the issue, In re
Marriage of Trapkus, 2022 IL App (3d) 190631, on the grounds that the Trapkus court improperly
employed extrinsic aids of statutory construction by examining “ ‘the evolution of the modification
statutes’ ” before concluding that the substantial change standard of section 610.5(c) applied to
requests to modify parenting time. Salbi, 2024 IL App (2d) 240322-U, ¶ 71.
¶ 36 In Trapkus, the original dissolution judgment entered in 2013 allocated physical care and
custody of the minor children to the mother, noting that joint legal custody was inappropriate due
to “animosity” between the parties. Trapkus, 2022 IL App (3d) 190631, ¶ 3. The father had
parenting time every other weekend, alternate Mondays and overnights on Wednesday, with more
time in the summer. Id. ¶¶ 9, 11.
¶ 37 In 2018, the father filed a petition seeking equal parenting time and other relief. Id. ¶ 7.
The mother also petitioned for relief from certain restrictions, as well as a change in the holiday
schedule. After a hearing, the trial court found no substantial change in circumstances had occurred
but stated that the statute allowed modifications to be made “in certain situations” when no change
in circumstances had occurred. Id. ¶ 13. However, the trial court did not indicate “whether any of
those situations existed in this case.” Id. The trial court denied the father’s petition for equal
parenting time (id. ¶ 14) but granted the mother’s requests for relief from restrictions and for
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changes to the holiday schedule. Id. ¶¶ 14-15. The father appealed, arguing, among other things,
that the trial court applied the wrong standard in determining his petition for equal time. Id. ¶ 21.
¶ 38 On appeal, inter alia, Trapkus affirmed the denial of the petition for equal parenting time
and rejected the father’s argument that the statute required only that he establish a change in
circumstances, not a substantial change in circumstances. Id. ¶ 29. The court initially reviewed the
language of the current section 610.5, including the second sentence from section 610.5(a):
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a
showing of changed circumstances that necessitates modification to serve the best interests of the
child.” 750 ILCS 5/610.5(a) (West 2022). Trapkus then observed that “[w]hile it may appear that
section 610.5(a) contains a legal standard applicable to motions seeking the modification of a
parenting-time allocation, a review of the evolution of the modification statutes shows otherwise.”
Trapkus, 2022 IL App (3d) 190631, ¶ 24. 4
¶ 39 Trapkus based its ruling on a comment in a 1998 supreme court case, Department of Public
Aid ex rel. Davis v. Brewer, 183 Ill. 2d 540 (1998). Trapkus, 2022 IL App (3d) 190631, ¶¶ 25-29.
But the issue in Brewer was whether serious endangerment had to be proved by clear and
convincing evidence in custody modifications brought within two years, or whether the trial court
need only find reason to believe serious endangerment to allow the request for a hearing on the
modification request. Brewer, 183 Ill. 2d at 552. Brewer held that the plain language of the statute
existing at that time required a party to meet the “procedural prerequisite” (id. at 556) of “ ‘reason
4
We note that the parties in Trapkus did not argue nor did the court address when or whether a
request to modify parenting time should be construed as a request to modify a parenting plan or an allocation
judgment.
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to believe’ ” (id.) before any hearing was allowed, after which the legal standard of clear and
convincing evidence in subsection (b) would be applied at the hearing. Id.
¶ 40 Trapkus focused on Brewer’s observations—based on the statute as it then existed—of the
“ ‘gatekeeping function’ ” in subsection (a) (Trapkus, 2022 IL App (3d) 190631, ¶ 24 (quoting
Brewer, 183 Ill. 2d at 554-56)) and the legal standards in subsection (b), the predecessor to
subsection (c). Id. ¶ 28 (discussing Brewer, 183 Ill. 2d at 554-56). Trapkus held that, because
Brewer construed the statute as it then existed to separate the gatekeeping function in subsection
(a) from the legal standard of proof required in (the former) subsection (b), the legislature’s
subsequent amendments to subsection (a) were limited by that interpretation. In other words, they
could only serve a gatekeeping function, despite the plain language of the current statute. Trapkus
ruled: “The changes made by the General Assembly to subsection (a) evince an intent for that
subsection to remain as a gateway *** in line with *** Brewer.” Id. ¶ 27 (“There is nothing in the
amended version of section 610.5 to indicate that the General Assembly sought to alter the Brewer
interpretation of subsection (a) as a gateway to an evidentiary hearing.”).
¶ 41 Similarly, Trapkus pointed to Brewer’s interpretation of subsection (b) of the former statute
as containing the legal standard for its conclusion that “[i]f the General Assembly had intended to
create a new legal standard in subsection (a) for deciding parenting-time modification requests, it
would have had to amend subsection (c).” Id. ¶ 28 (“Furthermore, Brewer interpreted subsection
(c)’s predecessor as containing the legal standard for evidentiary hearings on modification requests
[citation], and when the General Assembly amended section 610.5, it did not amend subsection
(c).”).
¶ 42 We disagree with this interpretation. First, as we said in Salbi, given the plain language of
the statute, we think Trapkus strayed by resorting to extrinsic aids and failing to apply the plain
language of the statute. Salbi, 2024 IL App (2d) 240322-U, ¶ 71; see Brunton v. Kruger, 2015 IL
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2025 IL App (2d) 240028
117663, ¶ 24 (“Further, we will not utilize extrinsic aids of statutory interpretation unless the
statutory language is unclear or ambiguous.”); Allstate Insurance Co. v. Menards, Inc., 202 Ill. 2d
586, 591 (2002) (“When statutory language is ambiguous, it is appropriate to resort to extrinsic
aids of construction such as an examination of the legislative history.”). The language in subsection
(a) is not ambiguous or unclear, nor did Trapkus assert that it was.
¶ 43 Next, it is true, as Trapkus asserts, that where a court construes the language of a statute
that “ ‘construction becomes, in effect, a part of the statute.’ ” Trapkus, 2022 IL App (3d) 190631,
¶ 27 (quoting Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 19). But we must part ways
with Trapkus’s attempt to ignore the plain language of subsection (a) and use Brewer to shun its
plain meaning and confine it to serve only as a “gateway.” Id. First and foremost, our duty is to
discern the intent of the legislature. Beggs v. Board of Education of Murphysboro Community Unit
School District No. 186, 2016 IL 120236, ¶ 52. The most reliable indicator of legislative intent is
the language of the statute itself, which we must give its plain and ordinary meaning. Van Dyke v.
White, 2019 IL 121452, ¶ 46. Where the legislature changes the statute such that the current version
of subsection (a) no longer serves the sole function of gatekeeping requests to modify within two
years, then that construction in Brewer cannot create a presumption contrary to the legislature’s
plain language. See Barrall v. Board of Trustees of John A. Logan Community College, 2019 IL
App (5th) 180284, ¶ 33 (refusing to apply the rule where a contrary legislative intent was clear),
aff’d, 2020 IL 125535.
¶ 44 We have also considered whether we ought to give the holding in Trapkus the effect it gave
the holding in Brewer: “Notably, ‘after [the supreme court] has construed a statute, that
construction becomes, in effect, a part of the statute ***.’ ” Trapkus, 2022 IL App (3d) 190631,
¶ 27 (quoting Village of Vernon Hills, 2015 IL 118170, ¶ 19). But we will not do so for two reasons.
First, as discussed above, if the statute is not ambiguous, then these extrinsic aids of statutory
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construction, like legislative acquiescence, should not be used. See People v. Castillo, 2022 IL
127894, ¶ 24.
¶ 45 Second, Trapkus was decided just three years ago, and this rule seems best applied when
more time has passed and more courts have ruled upon it. See, e.g., 2B Norman Singer, Sutherland
Statutory Construction § 49:9 (7th ed. Nov. 2025 Update) (“Legislative acquiescence is of small
consequence when a legislature is unaware of a contemporaneous interpretation.”); In re Tribune
Co. Fraudulent Conveyance Litigation, 946 F.3d 66, 95 (2d Cir. 2016) (“[T]he failure of Congress
to respond to court decisions is of interpretive significance only when the decisions are large in
number and universally, or almost so, followed.”); People v. Johnson, 2019 IL 123318, ¶ 20
(applying a construction to the burglary statute ascribed by numerous Illinois decisions over “50-
plus years”); In re Marriage of O’Neill, 138 Ill. 2d 487, 494-96 (1990) (interpreting a statute
consistent with the holdings of numerous cases over more than 20 years and in the face of several
amendments that left the issue unaddressed).
¶ 46 The plain language is enough, but if we were to look at the legislative history of section
610.5 of the Act (750 ILCS 5/610.5 (West 2022)), we would be reassured that the legislature did
not intend a result opposite to its written words. After years of study, the Illinois legislature updated
the Act in 2015 (Pub. Act 99-90 (eff. Jan. 1, 2016)), and among other changes, “revamp[ed] ***
concepts formerly called custody, parenting time, visitation, and removal.” William J. Scott &
Robin R. Miller, The New Illinois Marriage and Dissolution of Marriage Act: An Overview,
DCBA Brief: J. DuPage Cnty. Bar Ass’n, Dec. 2015, at 10, 12, https://cdn.ymaws.com/www.
dcba.org/resource/resmgr/brief_pdf/brief_dec2015.pdf [https://perma.cc/C6QT-D7X4].
¶ 47 Before the comprehensive amendments, section 610(a) contained only the first sentence
addressed in Brewer:
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“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.” (Internal quotation marks
omitted.) Brewer, 183 Ill. 2d at 553.
Subsection (b), which was also discussed in Brewer, provided that a court should not modify a
prior custody judgment except upon clear and convincing evidence of a (simple) change in
circumstances and a best interest finding. Id.
¶ 48 The first iteration of the amendments to the Act repealed section 610 and added a new
modification statute—section 610.5, which retained in large part the previous subsection (a),
although it used the new terminology for custody:
“Unless by stipulation of the parties ***, no motion to modify an order allocating parental
responsibilities 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 or her mental, moral, or physical health or
significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a) (West Supp.
2015).
¶ 49 Section 610(b) was repealed and recast with substantial changes in section 610.5(c), now
reading:
“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve
the child’s best interests if the court finds, by a preponderance of the evidence, that on the
basis of facts that have arisen since the entry of the existing parenting plan ***, 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.” Id. § 610.5(c).
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¶ 50 Significantly, the new section 610.5(c) differed from the old section 610(b) in that section
610(b) required proof of a simple change in circumstances, but subsection 610.5(c) mandated a
substantial change in circumstances and the quantum of proof was reduced from clear and
convincing evidence in old subsection 610(b) to a preponderance of the evidence in subsection
610.5(c). See David E. Braden, Judicial Discretion v. Predictable Outcomes: A Review of the 2016
Amendments to the Illinois Marriage and Dissolution of Marriage Act, 92 Chi.-Kent L. Rev. 249,
273-74 (2017) (“The new section 610.5(c) of the [Act] substantially changes the repealed section
610(b) in the following ways. First, the provision now provides that the court shall modify a
parenting plan or allocation judgment when (1) a substantial change has occurred in the
circumstances of the child or of either parent and (2) a modification is necessary to serve the child’s
best interests—rather than proceeding from the presumption that the court will not modify a prior
custody judgment. Second, the provision changes the burden of proof from requiring clear and
convincing evidence that a change has occurred to requiring a showing, by a preponderance of the
evidence, that a substantial change has occurred.” (Emphases in original.)).
¶ 51 But soon after the adoption of these changes, subsection (a) was amended again. Pub. Act
99-763, § 5 (eff. Jan. 1, 2017) (amending 750 ILCS 5/610.5(a)). The relevant changes included
additional words in the first sentence of subsection (a) and a second sentence, which are reproduced
here italicized:
“Unless by stipulation of the parties or except as provided in Section 603.10 of this Act,
no motion to modify an order allocating parental decision-making responsibilities, not
including parenting time, 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 or her mental, moral, or physical health
or significantly impair the child’s emotional development. Parenting time may be modified
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at any time, without a showing of serious endangerment, upon a showing of changed
circumstances that necessitates modification to serve the best interests of the child.”
(Emphases added.) 750 ILCS 5/610.5(a) (West 2018).
¶ 52 In the face of this change, Trapkus saw “nothing in the amended version of section 610.5
to indicate that the General Assembly sought to alter the Brewer interpretation of subsection (a) as
a gateway to an evidentiary hearing.” Trapkus, 2022 IL App (3d) 190631, ¶ 27. We disagree and
see the plain language as such an indication. In the 2017 version, parenting time is now carefully
carved out of the gatekeeping process required for attempts to modify allocations of parental
decision-making responsibilities within two years. The next sentence addresses parenting time
change requests and explicitly allows parenting time to be modified at any time and with only a
simple change in circumstances. If, as Trapkus held, the legislature meant to require that parenting
times be changed only upon a showing of a substantial changes in circumstances they could have
easily said so, as they did in subsection 610.5(c), but they did not. See Masterton v. Village of
Glenview Police Pension Board, 2022 IL App (1st) 220307, ¶ 47 (“When the legislature uses
certain language in one section of a statute and different language in another part, courts assume
that the legislature intended different meanings.”). “Changed circumstances” does not mean
“substantial change of circumstances.” Any other reading fails to honor the plain language.
¶ 53 As the foregoing discussion makes clear, the parenting time provision was added after the
comprehensive amendments. The Act defines the new terminology for family issues. “Parental
responsibilities” means both parenting time and significant decision-making responsibilities with
respect to a child. 750 ILCS 5/600(d) (West 2022). “Parenting time” means the time during which
a parent is responsible for exercising caretaking functions and nonsignificant decision-making
responsibilities with respect to the child. Id. § 600(e). “Parenting plan” means a written agreement
that allocates significant decision-making responsibilities, parenting time, or both. Id. § 600(f).
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When the legislature added the specific language concerning parenting time to subsection 610.5(a),
it appears to us that it was using the more precise term “parenting time” to differentiate it from the
more general terms of “parental responsibilities” in subsection (a) and “parenting plan” in
subsection (c). See Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002) (Where a
general statutory provision and a more specific statutory provision relate to the same subject, we
will presume that the legislature intended the more specific provision to govern.). We further
assume that the legislature meant this follow-on change in the law in 2017 to allow modifications
of “parenting time” unfettered timing (“at any time” (750 ILCS 5/610.5(a) (West 2022))) and with
a less onerous burden of proof (“changed circumstances” (id.)). See People v. Hicks, 119 Ill. 2d
29, 34 (1987) (“Absent substantial considerations to the contrary, ‘an amendatory change in the
language of a statute creates a presumption that it was intended to change the law as it theretofore
existed.’ ” (quoting People v. Nunn, 77 Ill. 2d 243, 248 (1979))). If it was the intention of the
legislature that changing a pick-up time should not be as difficult as changing parental decision-
making or a parenting plan, then this language serves the purpose very well.
¶ 54 After Salbi was decided, a recent unreported Fourth District case made the same
determination we make here—that “the plain language of section 610.5(a) requires a party seeking
a modification of parenting time to show only changed circumstances, as opposed to a substantial
change of circumstances.” Erik S. v. Hollie S., 2025 IL App (4th) 241337-U, ¶ 71. In Erik S., the
court considered the issue of the standard to apply to a request to modify parenting time: a simple
change in circumstances or a substantial change in circumstances. The court concluded that the
“second sentence of section 610.5(a) clearly states parenting time may be modified upon a showing
of ‘changed circumstances that necessitates modification to serve the best interests of the child.’
[Citation.] If the legislature intended for the changed circumstances to be ‘substantial,’ it would
have said so.” Id. ¶ 71. Erik S. also shared our concern that Trapkus improvidently resorted to
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extrinsic aids when the plain meaning would have done the job. Id. ¶ 71 (“[D]espite the clear
language of the statute, the Third District unnecessarily, in this court’s opinion, examined extrinsic
aids of statutory construction to determine that the applicable legal standard required a ‘substantial
change’ in circumstances.”). We find Erik S. persuasive and agree that the standard for
modifications to parenting time is a showing of changed circumstances that necessitates
modification to serve the best interests of the child. Id.
¶ 55 Finally, we note petitioner’s contentions. First, she complains that Salbi is nonprecedential.
But Illinois Supreme Court Rule 23(e) (eff. June 3, 2025) allows a party to cite a nonprecedential
disposition entered after January 1, 2021, for persuasive purposes, and this is exactly what
respondent did. Next, she asserts that the trial court was obligated to follow In re Marriage of
Burns, 2019 IL App (2d) 180715, where we stated that subsection (c) required a substantial change
in circumstances. Id. ¶¶ 25-26. But that case is distinguishable, as well as the others on which she
relies. In none of those cases were we or the trial court called upon to determine the correct legal
standard applicable to the respondent’s request to modify parenting time. See, e.g., Foust v. Forest
Preserve District, 2016 IL App (1st) 160873, ¶ 51 (the case the defendant relied upon did not
analyze the issue presented in the case at bar; the court found that it did not “provide any insight
into [its] analysis”). Additionally, the cases cited by petitioner involved changes to both the
allocation of parental responsibilities and the allocation of parenting time. See, e.g., Burns, 2019
IL App (2d) 180715, ¶ 6. As we detail above, subsection (c) expressly covers parenting plans and
allocation judgments whereas subsection (a) governs parenting time. 750 ILCS 5/610.5(a), (c)
(West 2022).
¶ 56 Petitioner also charges that respondent’s arguments here on this point are disingenuous
because his arguments below (at best) equivocated as to the proper standard. It is true that
respondent asserted in his written memos that the substantial change standard applied, although he
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argued orally to the trial court applying “changed circumstances” as the requirement. Nevertheless,
it is still incumbent upon the trial court to properly apply the law as written, giving effect to the
clear and unambiguous statutory language. Haage, 2021 IL 125918, ¶ 44. This was not done, and
this failure requires us to vacate its judgment.
¶ 57 Petitioner next contends that respondent’s appellate counsel was dilatory in prosecuting the
appeal, which allowed him to rely upon Salbi, pointing to the numerous extensions of time granted
him in which to complete his initial appellate brief, which allowed him to cite to the then-released
Salbi case. Despite the veracity of petitioner’s representations, her argument fails. First, because,
as she admits, she did not object to respondent’s requests for extensions of time. Second, because,
as we have held above, section 610.5(a) is clear and unambiguous, and the trial court was bound
to apply the statute as written. Lastly, petitioner requests that we affirm on the ground that
respondent failed in his burden to prove the best-interests prong. This argument is a nonstarter for
the simple reason that the trial court did not reach the issue of best interests in its analysis. We
reject petitioner’s contentions.
¶ 58 Accordingly, we hold that, pursuant to section 610.5(a) of the Act, a party seeking to solely
modify parenting time needs to show only a simple change in circumstances, not a substantial
change in circumstances. Thus, the trial court applied the incorrect legal standard to respondent’s
amended motion to modify. We therefore vacate the court’s grant of the motion for directed
finding. Because the court considered the evidence through the incorrect legal standard, we remand
the matter and direct it to consider whether respondent made a sufficient demonstration of changed,
as opposed to substantially changed, circumstances. If the court concludes respondent has made
the necessary showing, it shall then consider whether he has demonstrated that a modification in
parenting time is necessary to serve the best interests of the children. Should respondent succeed
in this showing, the hearing shall resume with petitioner’s case-in-chief.
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¶ 59 III. CONCLUSION
¶ 60 For the foregoing reasons, we vacate the judgment of the circuit court of McHenry County
and remand the cause with directions.
¶ 61 Vacated and remanded with directions.
¶ 62 JUSTICE BIRKETT, dissenting:
¶ 63 I agree with my colleagues regarding the unfortunate failure to recognize and schedule this
case as an accelerated matter pursuant to Illinois Supreme Court Rule 311 (eff. July 1, 2018) and
join in their admonition of the parties to be better cognizant of the fact that the statutory definitions
of specific words and phrases should be given the same effect in our supreme court rules as in the
statutes themselves. We, too, dropped the ball by failing to recognize this cause should have been
accelerated, and I am confident that, in future, along with the parties and future litigants, we will
recognize and uniformly apply defined terms and expedite cases before us involving changes to
the allocation of parental responsibilities. See 750 ILCS 5/600 (West 2022) (definitions contained
therein). I thus agree with part II.A of the opinion above (supra ¶¶ 12-20).
¶ 64 I part ways with my colleagues, however, on the proper interpretation of section 610.5 of
the Illinois Marriage and Dissolution of Marriage Act (Act) (id. § 610.5). The fundamental flaw
in my colleagues’ reasoning is revealed in the first questions asked of respondent at oral argument.
Respondent was asked why he had not designated this case as accelerated under Rule 311.
Respondent replied that he did not believe Rule 311 applied to a situation “where the only issue
before the court was a request an increase in parenting time.” When reminded of the definitions of
section 600, and particularly the fact that parenting time is expressly included within the definition
of parental responsibilities (id. § 600(d); see Ill. S. Ct. R. 311 (eff. July 1, 2018) (“The expedited
procedures in this subpart shall apply to appeals from final orders in child custody or allocation of
parental responsibilities cases ***.”)), respondent maintained his position that Rule 311 did not
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apply to a stand-alone request to modify parenting time. This flawed understanding and refusal to
apply the definitions for the words of the statute (and supreme court rule) permeate respondent’s
analysis and was endorsed and adopted by the majority.
¶ 65 I believe that the plain language of section 610.5 unambiguously compels the result that,
in order to change any facet of parental responsibilities, including parenting time, the trial court
must determine that a substantial change in circumstances has occurred. Because I arrive at a
reasonable interpretation of the language of section 610.5 based solely on the language employed
in the provision, and in light of the differing result my colleagues have reached, section 610.5 is
arguably ambiguous. Therefore, resort to other aids of construction is both appropriate and points
to the necessity of proving a substantial change in circumstances before the court will grant a
change to parenting time between the parties. Finally, considerations of stare decisis and
maintaining a uniform body of precedent require that we adhere to the construction placed on
section 610.5 by the heretofore only reported authority to consider this issue. For these reasons, I
respectfully dissent in part.
¶ 66 I. Preliminary Factual Issues
¶ 67 My colleagues adequately explain the factual background in this case, but I wish to
emphasize several points. The trial court commented a few times on the apparent acrimony existing
between the two parties. The record supports this unfortunate state of affairs. In addition, I note
that, when petitioner requested an increase in child support for the children, respondent’s reply
was to file a counterpetition to strip petitioner of her primary parental responsibilities and to take
primary custody of the children for himself, supporting his petition with rather incendiary
allegations of petitioner’s misconduct towards him, her use of the children as pawns in the tatters
of their relationship, and other claims of misfeasance regarding the children. As this matter
progressed, respondent’s expert witness did not support his claim that the parental responsibilities
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should be altered and, instead, supported the status quo with petitioner retaining the primary
decision-making responsibilities. Respondent then withdrew his requests for modification of all
but the parenting time—a request which added a significant amount of parenting time for him with
a commensurately significant decrease in petitioner’s parenting time. The record is therefore
replete with respondent’s tit-for-tat-and-then-some legal strategy, culminating in the instant
appeal.
¶ 68 My colleagues dismiss petitioner’s contention that respondent’s arguments as to the proper
standard are disingenuous and equivocal, because his written argument advocated the proper (in
my view) substantial change standard for the hearing, while some of his verbal argument may have
advocated a simple change in circumstances. Supra ¶ 56. The record rebuts the majority’s claim.
In the September 7, 2023, argument on petitioner’s motion for directed finding, respondent argued
that he had “demonstrated there is a prima facie case that is not subject to a motion for directed
finding” because he had made “a strong case with the evidence that we have that there has been
since 2016 a very substantial change of circumstances or facts that were unknown at the time of
the 2016 order” setting forth, among other things, the parenting time schedule. Clearly, respondent
was orally, as well as in his written arguments, advocating the proper, substantial change standard
of proof at the hearing. Respondent correctly grasped the proper evidentiary standard before the
trial court, and any exhortations to the contrary in this appeal are unsupported in the record.
¶ 69 Moreover, the trial court got it right, too. In its ruling on petitioner’s motion for a directed
finding, the court employed the proper standard, requiring that respondent demonstrate a
substantial change. Due to the standards of considering a motion for a directed finding, the court
concluded that respondent had indeed made a prima facie case—presented some evidence (In re
Marriage of Larsen, 2023 IL App (1st) 230212, ¶ 121)—of substantial change, but when
considering all of the evidence, it concluded that evidence presented by petitioner negated some
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of respondent’s evidence (id. ¶ 122), leading to its conclusion that respondent was unable to
demonstrate that there had been a substantial change in circumstances.
¶ 70 II. The Proper Interpretation of Section 610.5 of the Act
¶ 71 I briefly review the principles of statutory interpretation. The cardinal rule of statutory
interpretation, to which all other canons and rules are subordinate, is to ascertain and give effect
to the legislature’s intent. Thomas v. Khoury, 2021 IL 126074, ¶ 11. It is well settled that the most
reliable indicator of the legislature’s intent is the language employed in the statute, given its plain
and ordinary meaning. Id. The statute should be read as a whole, and its words and phrases should
be interpreted with respect to other relevant provisions of the statute and should not be considered
in isolation. Sandholm v. Kuecker, 2012 IL 111443, ¶ 41. Every word, clause, and sentence must
be given a reasonable meaning, if possible, and none should be rendered superfluous. Lakewood
Nursing & Rehabilitation Center, LLC v. Department of Public Health, 2019 IL 124019, ¶ 17.
Moreover, when a statute defines the terms and phrases it uses, those terms and phrases must be
construed according to the very definitions used by the statute. Robbins v. Board of Trustees of the
Carbondale Police Pension Fund, 177 Ill. 2d 533, 540 (1997). In determining the legislature’s
intent, in addition to the language employed, a court may also consider the reason for the statute,
the problems to be remedied and the purpose to be achieved, and the consequences of construing
the statute one way or another. Id. A court must further presume that the legislature did not intend
absurdity, inconvenience, or injustice in enacting the statute. Lakewood Nursing, 2019 IL 124019,
¶ 17. Moreover, if a literal interpretation of the provision would lead to “consequences that the
legislature could not have contemplated and surely did not intend, [the] court will give the statutory
language a reasonable interpretation.” Wade v. City of North Chicago Police Pension Board, 226
Ill. 2d 485, 510 (2007); see Ohle v. The Neiman Marcus Group, 2016 IL App (1st) 141994, ¶ 38
(same).
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¶ 72 The provisions at issue are given above, so I will not repeat them here. Supra ¶ 28 (quoting
750 ILCS 5/610.5(a)-(c) (West 2022)). In looking at subsection (a) versus subsection (c), the
subject matter of each subsection is discrete. Subsection (a) is concerned with a motion to modify
an order allocating parental responsibilities. 750 ILCS 5/610.5(a) (West 2022) (“no motion to
modify an order allocating parental decision-making responsibilities, [with the exception of
parenting time], may be made earlier than 2 years after its date” (emphasis added)). Subsection
(c), by contrast, is concerned with the court and the circumstances that will lead it to modifying a
parenting plan or allocation judgment. Id. § 610.5(c) (“the court shall modify a parenting plan or
allocation judgment” upon making certain findings (emphasis added)). Subsection (a), by
excepting parenting time from the two-year time limit, allows “parenting time” to be modified at
any time, further describing what the movant must allege in the “motion to modify” to secure a
hearing. Id. § 610.5(a). By contrast, subsection (c) clearly governs the conduct of the hearing,
requiring the court to grant the motion to modify (which necessarily includes a motion to modify
parenting time standing alone) if it “finds, by a preponderance of the evidence, *** a substantial
change has occurred *** and that a modification is necessary to serve the child’s best interests.”
Id. § 610.5(c).
¶ 73 This structural differentiation is borne out by the definitions provided in this part of the
Act. Allocation judgment means “a judgment allocating parental responsibilities.” Id. § 600(b).
Parenting plan means “a written agreement that allocates significant decision-making
responsibilities, parenting time, or both.” Id. § 600(f). Parental responsibilities “means both
parenting time and significant decision-making responsibilities with respect to a child.” Id.
§ 600(d). Parenting time “means the time during which a parent is responsible for exercising
caretaking functions and non-significant decision-making responsibilities with respect to the
child.” Id. § 600(e).
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¶ 74 Subsection (a) begins by time-limiting when a motion to modify an allocation judgment
may be brought. Id. § 610.5(a). An allocation judgment has allocated “parental responsibilities,”
meaning parenting time and significant decision-making responsibilities with respect to the child.
Thus, parenting time would be subject to the two-year limitation, but the “not including parenting
time” clause of the first sentence of subsection (a) specifically excepts parenting time from that
limit. Id. The second sentence of subsection (a) provides how a motion to modify parenting time,
standing alone, is to be handled. Id. Subsection (a) also provides a mechanism, including the
requirements of what must be included in the motion, to bring a motion to modify an allocation
judgment, before the two-year time limit has elapsed: an affidavit that the child’s environment is
dangerous and with the court’s permission. Id. Subsection (a) is silent about what is required to
bring a motion to modify after two years has elapsed, leading to the inference that it may be brought
solely on the basis that sufficient time has elapsed since the entry of the previous allocation
judgment. Id. The second sentence of subsection (a) continues in this vein, describing what is
required to make a motion to modify parenting time alone: a showing of changed circumstances
that necessitates modification to serve the child’s best interests. Id. Thus, subsection (a) is clearly
and unambiguously concerned with the motion to modify—either the allocation judgment in toto
or parenting time standing alone.
¶ 75 The focus of subsection (c) is entirely upon what the court must find: “the court shall
modify a parenting plan 5 or allocation judgment when necessary to serve the child’s best interests.”
5
I note that the definition of “parenting plan” essentially covers all the bases of the allocation
judgment: “a written agreement that allocates significant decision-making responsibilities, parenting time,
or both.” 750 ILCS 5/600(f) (West 2022). “Allocation judgment” is defined as a judgment allocating both
parenting time and significant decision-making responsibilities with respect to a child. Id. § 600(b), (d).
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Id. § 610.5(c). The court must make two findings: first, that there has been a substantial change in
circumstances, and second, that modification is necessary to serve the child’s best interests. Id.
Subsection (c) also includes an evidentiary burden—preponderance of the evidence—to prove
there has been a substantial change in circumstances. Id. It is the express inclusion of this
evidentiary burden that confirms the focus of subsection (c) is clearly and unambiguously upon
the hearing—either on the motion to modify the allocation judgment or the motion to modify
parenting time.
¶ 76 There is a further wrinkle to consider between subsections (a) and (c): subsection (a), if
given substantive instead of procedural effect, means that the simple change in circumstances leads
to the consequence of modification (“upon a showing of changed circumstances that necessitates
modification” (id. § 610.5(a))); subsection (c) means that the proposed modification is required to
serve the child’s best interests (“modification is necessary to serve the child’s best interests” (id.
§ 610.5(c))). According to the majority, when a simple change in circumstances occurs, a
modification in parenting time is required. If, however, section 610.5 is given its proper effect, the
change in circumstances itself leads to the proposed modification in subsection (a), and the court
considers whether the proposed modification serves the child’s best interests in subsection (c).
Effectively, the majority cuts out of the equation the consideration of the modification as it relates
to the child’s best interests and focuses the consideration on whether the circumstances have
changed.
¶ 77 Turning from the text of section 610.5 to the majority’s interpretation, my colleagues
misapply the canons of statutory construction in significant ways. First, the majority breaks
subsection (a) into two parts, treating each sentence in subsection (a) as its own separate entity
with differing purposes, rather than reading the two sentences together as part of the same
provision. Sandholm, 2012 IL 111443, ¶ 41 (the provision should be read as a whole). The majority
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also reads subsection (a) as distinct from subsection (c) instead of reading them, and the other
subsections, together to create a unified and coherent purpose. Id. This fractured reading ignores
the fundamental principle that the statute be read as a whole, its words and phrases considered with
respect to other relevant provisions of the statute and not considering the words and phrases in
isolation. Id. Significantly, subsection (c) includes an evidentiary standard, preponderance of the
evidence, yet the second sentence of subsection (a) does not. The majority nevertheless interprets
the second sentence to provide the simple-change evidentiary standard yet omits whether the
simple change must be demonstrated by a preponderance of the evidence or by clear and
convincing evidence.
¶ 78 Further, the majority fails to apply the definitions of the terms given in section 600 to the
terms used in section 610.5 and fails to explain how it manages to make parenting time wholly
independent from an allocation judgment or parenting plan. See Robbins, 177 Ill. 2d at 540
(defined terms must be construed according to the definitions provided in the statute). By failing
to explain how parenting time is somehow pulled out of subsection (c) when it is necessarily folded
into “allocation judgment” and “parenting plan,” the majority’s explanation is not cohesive.
Moreover, the majority fails to account for the element of time: subsection (a) deals with time—
the time within which to bring a request to modify—whereas subsection (c) deals with
modification of the existing plan or judgment.
¶ 79 Moreover, a significant purpose of the Act is to provide certainty and promote stability for
the child of the dissolved union. 750 ILCS 5/102(5)-(7) (West 2022). The majority’s interpretation
actually destabilizes the balance between bringing a petition to modify parenting time and proving
such a petition—by conflating the pleading requirements with the evidentiary burden of proof, any
standalone request to modify parenting time automatically advances to the determination of the
child’s best interests, with all that entails. This means interviews and assessments, expending
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scarce parental resources—financial, emotional, and intellectual—on litigation, and the tilting of
the playing field to the well-heeled, litigious-minded parent who wishes to use this process as a
cudgel to belabor his or her former partner. Such a result cannot be what the legislature intended,
and it should not be how we interpret section 610.5. See Wade, 226 Ill. 2d at 510 (a court should
reject a literal interpretation of the provision if it would lead to consequences neither foreseen nor
intended by the legislature and should instead adopt a reasonable interpretation of the statutory
language).
¶ 80 As I noted above, the majority, like respondent, fails to apply the definitions of the terms
given in section 600 to the terms used in section 610.5. “Parenting time” is definitionally included
within “parenting plan” and “allocation judgment.” 750 ILCS 5/600(b), (d) (West 2022). By failing
to explain how the legislature intended to remove parenting time from the defined terms even as it
embedded it within the statutory meaning of those terms, the majority’s explanation is neither
cohesive nor persuasive.
¶ 81 This leads to a broader point with the majority’s analysis: it reads and analyzes the words,
but the words are taken out of the context of the purpose and meaning of the provisions at issue.
Thus, the analysis of simple change versus substantial change is properly done, but only insofar as
it pertains to the use of “change” as if simple change and substantial change were directly
juxtaposed. This “not seeing the forest for the trees” mindset leads my colleagues into their error.
According to the majority, the “follow-on change in the law in 2017 [was intended] to allow
modifications of ‘parenting time’ unfettered timing (‘at any time’ (750 ILCS 5/610.5(a) (West
2022))) and with a less onerous burden of proof (‘changed circumstances’ (id.)).” Supra ¶ 53. First,
the leap from timing to burden of proof makes no sense in the context of the provision. As noted
above, subsection (a) deals with the timing and requirements of a request to modify; subsection
(c) expressly includes the burden of proof, preponderance of evidence. To claim that the legislature
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intended to make a wholesale change in the burden of proof in the provision relating to timing
instead of the existing provision specifically relating to the burden of proof is nonsensical.
Lakewood Nursing, 2019 IL 124019, ¶ 17 (we presume that the legislature did not intend an absurd
or nonsensical result in enacting a statute). More importantly, however, in what sense does the
majority mean that “changed circumstances” is a burden of proof?
¶ 82 “Burden of proof” refers to the “quantum and qualify of proof” a party must present to
prevail. People v. Morgan, 2025 IL 130626, ¶ 39. The concept of “burden of proof” encompasses
both the burden of production, meaning the obligation to present enough evidence to satisfy a court
that an alleged fact exists, and the burden of persuasion, meaning the obligation of convincing the
trier of fact that the alleged fact is true. Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d
452, 462 (1983). The burden of proof is generally expressed to be by a preponderance of the
evidence, by clear and convincing evidence, or beyond a reasonable doubt. In re D.T., 212 Ill. 2d
347, 361-62 (2004). I have never seen a burden of proof expressed as a “change in circumstances,”
substantial or otherwise. For my colleagues to hold that the 2017 amendment to subsection (a)
included an “less onerous burden of proof” and to denominate that burden of proof to be “ ‘changed
circumstances’ ” is unreasonable and absurd.
¶ 83 Instead, it is clear that “changed circumstances” is a factual issue to be determined. As
stated above, then, “changed circumstances” is the alleged fact that must be shown to the court to
exist with a sufficient quantum of evidence, and then the court, sitting as trier of fact, must be
convinced that it is true by some standard—preponderance or clear and convincing. As discussed
below in more detail, the 2016 and 2017 amendments did change the burden of proof: the standard
changed from clear and convincing (750 ILCS 5/610(b) (West 2014)) to preponderance (750 ILCS
5/610.5(c) (West 2022)). In short, change in circumstances—simple or substantial—is a factual
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matter to be proved to a particular burden of proof and not, as the majority holds, a burden of proof
unto itself.
¶ 84 Thus, the change in circumstances is properly seen to be a factual allegation—an element.
However, looking solely at “changed circumstances” is only half of the requirement. The changed
circumstances must “necessitate[ ]” a “modification to serve the best interests of the child.” Id.
§ 610.5(a). The change in circumstances must therefore be related to the child’s interests in some
fashion, not simply be in the vein of one parent making a bit more money to justify an increase in
parenting time.
¶ 85 My colleagues, continuing to echo respondent, do not account for “necessitates
modification” in their analysis. Effectively, they write “necessitates modification” out of
subsection (a), and this they cannot do. Lakewood Nursing, 2019 IL 124019, ¶ 17 (every word,
clause, and sentence of a statute must be given a reasonable meaning). “Necessitates modification”
modifies “changed circumstances” and, thus, must be read in such fashion, and this serves to
alleviate the majority’s concern that the 2017 amendment that added “changed circumstances” to
subsection (a) somehow meant that the legislature was abandoning the longstanding requirement
of “substantial change in circumstances” that must be proved at a hearing.
¶ 86 This point is further underscored in a case discussing proper interpretation of subsection
(e) (concerning minor modifications to parenting time). In re Marriage of O’Hare, 2017 IL App
(4th) 170091. There, the respondent contended that the trial court had misinterpreted “minor
modification” because it was ambiguous. Id. ¶ 27. Using only the plain language of the Act, the
court disagreed. Id. The court emphasized that the provision must be read as a whole. Id. ¶ 28. The
court held that, with the exception of subsection (e) a party seeking a modification to parenting
time “must still show a substantial change in circumstances,” because the statute “evinces a desire
to maintain continuity in parenting plans,” a longstanding policy choice endorsed in many
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decisions. Id. O’Hare underscores the importance of proper interpretation of the entirety of the
statute while keeping an eye toward the ends the legislature sought to advance.
¶ 87 Finally, I note that, structurally, it makes more sense that, if the legislature intended to treat
a hearing on a motion to modify parenting time separate and apart from a hearing on a motion to
modify an allocation judgment, it would have placed the second sentence of subsection (a) into
subsection (c) to highlight the fact it intended a modification of parenting time to be allowed only
on a simple change in circumstances instead of the substantial change actually specified. 750 ILCS
5/610.5(a), (c) (West 2022). Thus, I conclude that the majority fails to interpret the words in
context and in relation to the whole, thus violating fundamental principles of statutory
construction. Sandholm, 2012 IL 111443, ¶ 41.
¶ 88 I also point out that the majority falsely deploys the fig leaf of judicial humility and declines
to consider whether a request to modify an allocation judgment including modification of parenting
time would need to show a simple or substantial change in circumstances. Supra ¶ 33 n.3. Simple
logic dictates that, if the simple-change standard applies to stand-alone requests to modify
parenting time, it must also apply to requests to modify parenting time embedded in requests to
modify the allocation judgment because, according to the majority, parenting time has been pulled
out and set apart from the allocation judgment in subsection (a). This, of course, injects chaos into
any hearing that includes a request to modify parenting time and any other request, as the court
will be required to decide simultaneously whether there has been a simple change and a substantial
change in circumstances—a result the legislature could not reasonably have intended. See Wade,
226 Ill. 2d at 510 (a court should reject an interpretation of the statute that leads to consequences
neither foreseen nor intended by the legislature). The majority’s coy reluctance to follow its own
logic serves only to illustrate the fundamental illogic of its decision and masks the mischief that
will inevitably result from it.
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¶ 89 My colleagues attempt to distinguish In re Marriage of Trapkus, 2022 IL App (3d) 190631,
¶ 24, claiming it used extrinsic aids to construe section 610.5(c) by reviewing “the evolution of the
modification statutes” to determine whether a party must prove a substantial change in
circumstances at a hearing on a request to modify parenting time. 6 Trapkus properly held that
subsection (a) retained its gatekeeping function even though it had been amended with the addition
of the second sentence devoted to a stand-alone motion to modify parenting time. Id. ¶ 27. My
colleagues part ways with Trapkus, because, in their view, the amendment to subsection (a)
changed its “sole function [from] gatekeeping requests to modify within two years” (emphasis in
original) (supra ¶ 43), to include “the burden of proof regarding requests to modify parenting time”
(supra ¶ 33). As explained above, the addition of the second sentence in subsection (a) did not add
a burden of proof to the procedural or gatekeeping function of subsection (a), rather, it filled in
any hole that existed when the first sentence of subsection (a) excluded requests to modify
parenting time from the general two-year time limit, and yet the newly amended version did not
specifically account for a stand-alone request to modify parenting time. Trapkus, whether it
properly resorted to extrinsic aids of statutory construction, correctly reached the right result.
Therefore, it should be followed.
¶ 90 My colleagues rely on In re Marriage of Salbi, 2024 IL App (2d) 240322-U, and Erik S. v.
Hollie S., 2025 IL App (4th) 241337-U, both of which reject Trapkus. Erik S. flat out
mischaracterizes section 610.5 of the act, stating: “Subsection (a) provides: Parenting time may be
modified at any time *** .”; “Subsection (c) governs the modification of parental decision making
or parental responsibilities.”; and “subsection (e) governs a modification of parenting time without
6
I deal with the propriety of extrinsic aids below when I discuss ambiguity, and I consider its
continuing value as authority when I discuss stare decisis.
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a showing of changed circumstances [pursuant to specific enumerated factors].” (Internal
quotation marks omitted.) Id. ¶ 70. Thus, Erik S. wholly ignores the first sentence of subsection
(a), limits subsection (c) to parental decision-making or parental responsibilities when subsection
(c) discusses when a court shall modify a parenting plan or allocation judgment, and limits
subsection (e) to parenting time when it, too, discusses the modification of a parenting plan or
allocation judgment. Id. By creating a straw man conception of section 610.5 of the Act through
misstating its subjects and purposes, Erik S. proves to be flawed and unpersuasive.
¶ 91 Salbi, of course, provided the trial run for the majority’s holding here. I initially note that,
in Salbi, the appellee did not provide a brief, and the case was decided without the assistance of a
strong analysis of the entirety of section 610.5. Salbi, 2024 IL App (2d) 240322-U, ¶ 62. The
majority takes advantage of the parties’ briefing here to elaborate on Salbi’s reasoning, but the
central fact remains: Salbi is based on a misconception of the structure and form of section 610.5,
leading to a misconstruction of the legislative intent. My colleagues are correct that unreported
cases may now be expressly considered for their persuasive purposes. Where, however, the
unreported cases employ flawed reasoning, their reasoning should not be followed.
¶ 92 I also highlight that both Erik S. and Salbi failed to consider, let alone explain and account
for, the section 600 definitions of parenting time, parenting plan, parental responsibilities, and
allocation judgment while refusing to follow Trapkus, which did properly use the principle of
construing defined terms according to the definitions provided in the statute. Robbins, 177 Ill. 2d
at 540. Trapkus expressly noted that “the modification of a ‘parenting plan’ referenced in
subsection (c) continued to include written agreements that allocated parenting time,” citing the
definitions from section 600 of the Act. Trapkus, 2022 IL App (3d) 190631, ¶ 28 (citing 750 ILCS
5/600(f), 610.5(c) (West 2016)). Erik S. rejected Trapkus in a two-paragraph analysis focusing on
subsection (a) and the meaning of “changed circumstances.” Erik S., 2025 IL App (4th) 241337-
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U, ¶¶ 70-71. Likewise, Salbi focused on subsection (a) and did not consider the definitions of the
terms employed in subsection (a), focusing instead on changed circumstances. Salbi, 2024 IL App
(2d) 240322-U, ¶ 70. Salbi rejected Trapkus for using extrinsic aids in construction while ignoring
the fundamental requirements that defined terms be construed according to their statutory
definitions. Id. ¶ 71. Interestingly, all three cases employed the principle that, had the legislature
intended a change, it would have said so. Trapkus, 2022 IL App (3d) 190631, ¶ 28 (“If the General
Assembly had intended to create a new legal standard in subsection (a) for deciding parenting-
time modification requests, it would have had to amend subsection (c).”); Erik S., 2025 IL App
(4th) 241337-U, ¶ 71 (“If the legislature intended for the changed circumstances to be ‘substantial,’
it would have said so.”); Salbi, 2024 IL App (2d) 240322-U, ¶ 70 (“Had the legislature intended
the change to be ‘substantial,’ it could have easily inserted such language in the second sentence
of section 610.5(a).”). If the legislature had intended to change the evidentiary burden pertaining
to factual issue of changed circumstances to be decided in the hearing on a request to modify,
would it have placed it in the subsection governing timing or the subsection governing the hearing?
This rhetorical question answers itself: the natural fit would be subsection (c), and Trapkus
correctly employed the principle. Even more interestingly, the failures of Erik S. and Salbi to
remotely consider that effect of the definitions of “parenting time,” “parenting plan,” and
“allocation judgment” on the construction of section 610.5 significantly undercut their analyses
and call into question their efforts at analyzing the legislative intent of section 610.5.
¶ 93 I last note that my colleagues suggest that the legislative purpose behind the second
sentence of subsection (a) was to make sure “that changing a pick-up time should not be as difficult
as changing parental decision-making or a parenting plan.” Supra ¶ 53. Of course, at issue here is
not simply a change in pick-up time from 3:30 p.m. to 3 p.m.; it is a significant increase in
respondent’s parenting time with the children. I take issue with the dismissive trivialization of the
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interests at stake in this case as somehow making my colleagues’ misconstruction of section 610.5
more palatable. Were respondent’s request to modify nothing more than a request to change the
pick-up time for his children, I note that subsection (e)(2) provides an expedient and streamlined
method to cover such a request. See 750 ILCS 5/610.5(e)(2) (West 2022) (allowing the court to
modify the parenting plan or allocation without a showing of changed circumstances if “the
modification constitutes a minor modification in the parenting plan or allocation judgment”). The
majority’s concern is an illusory bugaboo, so phrased as to stampede the reader into panicked
agreement with its misreading of subsection 610.5.
¶ 94 For the foregoing reasons, I would interpret subsection (a) to present the requirements for
a stand-alone request to modify parenting time and subsection (c) to present the burden of proof
and evidentiary standard to be employed by the court when adjudicating such a request, and I
would affirm the trial court’s judgment in this regard.
¶ 95 III. Construction of an Ambiguous Statute
¶ 96 While I disagree with my colleague’s analysis above, it can be seen to be a reasonable and
good-faith effort to construe section 610.5 of the Act. Likewise, while they disagree with my
analysis, it is a reasonable and good-faith effort to construe section 610.5 of the Act. This is the
very definition of ambiguity: “ ‘A statute is ambiguous if it is capable of being understood by
reasonably well-informed persons in two or more different ways.’ ” Landis v. Marc Realty, L.L.C.,
235 Ill. 2d 1, 11 (2009) (quoting Krohe v. City of Bloomington, 204 Ill. 2d 392, 395-96 (2003)). 7
7
I acknowledge that simply because we may say it is so does not make it so. I maintain that section
610.5 is clear and unambiguous, but an argument may be made that our radically differing interpretations
reveal an inherent ambiguity in section 610.5 that may be resolved through resort to extrinsic aids of
statutory construction.
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It is therefore appropriate to resort to other aids of construction to discern the legislature’s intent.
Id.
¶ 97 Because section 610.5 of the Act can be understood in at least two different ways,
Trapkus’s consideration of the “evolution of the modification statutes” to inform its construction
thus becomes appropriate. Trapkus, 2022 IL App (3d) 190631, ¶ 24. The conclusion that
subsection (a) is the procedural gateway to the subsection (c) hearing, requiring that the moving
party prove a substantial change in circumstances before his or her request will be granted, is thus
appropriately based on the consideration of how the statute was changed and, as reported authority,
should continue to be followed instead of distinguished. Id. ¶¶ 27-28 (“There is nothing in the
amended version of section 610.5 to indicate that the General Assembly sought to alter the
[Department of Public Aid ex rel. Davis v. Brewer, 183 Ill. 2d 540, 554-56 (1998)] interpretation
of subsection (a) as a gateway to an evidentiary hearing.” “If the General Assembly had intended
to create a new legal standard in subsection (a) for deciding parenting-time modification requests,
it would have had to amend subsection (c).”).
¶ 98 My colleagues commendably consider the legislative history and purposes in case section
610.5 be deemed ambiguous. Supra ¶¶ 46-53. I note first that, in the 2016 initial amendment, the
new section 610.5 “is apparently codifying the old requirements for modification of custody and
visitation, but using the new terms ‘Allocation of Parental Responsibility’ and ‘Parenting Plan.’ ”
William J. Scott & Robin R. Miller, The New Illinois Marriage and Dissolution of Marriage Act:
An Overview, DCBA Brief: J. DuPage Cnty. Bar Ass’n, Dec. 2015, at 10, 15, https://cdn.ymaws
.com/www.dcba.org/resource/resmgr/brief_pdf/brief_dec2015.pdf [https://perma.cc/C6QT-
D7X4]. The initial 2016 amendment thus apparently sought to preserve the existing regime with
subsection (a) providing the procedural requirements for a request to modify, among other things,
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parenting time and subsection (c) providing the burden of proof and evidentiary standards for any
request that proceeded to a hearing, just as Trapkus, 2022 IL App (3d) 190631, ¶¶ 27-28.
¶ 99 Before the 2016 amendment, section 610 addressed modification of parental
responsibilities. E.g., 750 ILCS 5/610 (West 2014). Subsection (a) provided the procedural
gatekeeping requirement that “no motion to modify a custody judgment may be made earlier than
2 years after its date, unless *** there is reason to believe [(supported by affidavit)] the child’s
present environment may endanger seriously his physical, mental, moral or emotional health.” Id.
§ 610(a). Subsection (b) provided the guidelines for the hearing on a motion to modify a custody
judgment: the trial court “shall not modify a prior custody judgment unless it finds by clear and
convincing evidence, *** that a [simple] change [in circumstances] has occurred.” Id. § 610(b).
¶ 100 The initial 2016 amendment repealed section 610 and replaced it with section 610.5,
updating the previous subsection (a) with the new terminology: “no motion to modify an order
allocating parental responsibilities may be made earlier than 2 years after its date, unless *** there
is reason to believe [(supported by affidavit)] the child’s present environment may [seriously]
endanger [the child].” 750 ILCS 5/610.5(a) (West Supp. 2015). The hearing requirements of the
former subsection (b) were substantially changed and placed into subsection (c): the trial court
“shall modify a parenting plan or allocation judgment when necessary to serve the child’s best
interests if the court finds, by a preponderance of the evidence, that *** a substantial change [in
circumstances] has occurred *** and that a modification is necessary to serve the child’s best
interests.” Id. § 610.5(c).
¶ 101 The initial amendment did not substantively change subsection (a). However, the initial
amendment to subsection (c) flipped the default from no change to a custody arrangement unless
certain conditions were met to a required change in the parenting plan or allocation judgment if
certain conditions were met. It also changed the evidentiary threshold from simple change in
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circumstances to a substantial change in circumstances, and the burden of proof was reduced from
clear and convincing evidence to a preponderance of the evidence.
¶ 102 Subsection (a) was thereafter amended to its current version. Pub. Act 99-763, § 5 (eff. Jan.
1, 2017) (amending 750 ILCS 5/610.5(a)). The first sentence was amended to except parenting
time from the two-year limitation period: “no motion to modify an order allocating parental
decision-making responsibilities, not including parenting time, may be made earlier than 2 years
after its date, unless *** there is reason to believe [(supported by affidavit)] the child’s present
environment may [seriously] endanger [him or her].” (Emphasis added.) 750 ILCS 610.5(a) (West
2022). The gatekeeping function was kept intact in this amendment, and parenting time was
excepted from the two-year limitation. To account for parenting time within the gatekeeping
function, the 2017 amendment added the second sentence to subsection (a): “Parenting time may
be modified at any time, without a showing of serious endangerment, upon a showing of changed
circumstances that necessitates modification to serve the best interests of the child.” Id. The second
sentence does not add a new requirement for the hearing on a motion to modify parenting time;
rather, it plugs the hole left by excepting parenting time from the two-year limitation on a request
to modify, and it provides what must be shown in such a request: the party must plead a change in
circumstances that requires a modification in parenting time to serve the child’s best interests. Id.
In other words, the change to subsection (a) is entirely organic and limited to that subsection—it
did not engraft a new requirement to the hearing governed by subsection (c) (which itself was
changed in the original 2016 amendment and left unchanged in the 2017 amendment). As Trapkus
aptly observed, “[i]f the General Assembly had intended to create a new legal standard in
subsection (a) for deciding parenting-time modification requests, it would have had to amend
subsection (c)” to accomplish that change. Trapkus, 2022 IL App (3d) 190631, ¶ 28.
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¶ 103 I also note that, at the time the Act and, particularly, section 610.5, were being amended in
2016, so too were the rules of our supreme court. Article IX of the Illinois Supreme Court rules
(Ill. S. Ct. Rs. Art. IX) was amended to emphasize the need for expeditious resolution of matters
impinging upon children of dissolved and dissolving marriages. Recognizing the new
amendments, our supreme court hybridized the terminology used, keeping the old terms of
visitation, custody, and removal, and adding the current terms of parental responsibilities,
parenting time, and relocation to persist side-by-side in Rule 900. Ill. S. Ct. R. 900, Committee
Comments (rev. Mar. 8, 2016). Despite the persistence of the old, superseded terminology, a
reading of the article IX rules demonstrates that they do not carve out parenting time and set it on
its own pedestal. All proceedings affecting children are covered together in the article IX rules,
and our supreme court’s intent to expedite these proceedings is manifest. Ill. S. Ct. R. 900(a) (eff.
Mar. 8, 2016) (“The purpose of this article (Rules 900 et seq.) is to expedite cases affecting the
custody or allocation of parental responsibilities of a child, to ensure the coordination of custody
or allocation of parental responsibilities matters filed under different statutory Acts, and to focus
child custody or allocation of parental responsibilities proceedings on the best interests of the child,
while protecting the rights of other parties to the proceedings.”). Thus, the point of the article IX
rules is to make cases involving parental responsibilities, including modifications, run smoothly,
efficiently, and expeditiously. Treating parenting time independently from parental responsibilities
(see 750 ILCS 5/600(d) (West 2022) (“ ‘Parental responsibilities’ means both parenting time and
significant decision-making responsibilities with respect to a child.”)) when it is definitionally
included within the term can only hinder our supreme court’s purpose.
¶ 104 My colleagues assert that the current version of subsection (a) “carefully carved [parenting
time] out of the gatekeeping process required for attempts to modify allocations of parental
decision-making responsibilities within two years,” yet added, to the gatekeeping provision, a
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sentence that “explicitly allow[ed] parenting time to be modified at any time and with only a simple
change in circumstances” that governs the hearing on the stand-alone request to modify parenting
time. (Emphasis in original.) Supra ¶ 52. This view injects absurdity and confusion into what is
otherwise clear and, frankly, unambiguous. See Lakewood Nursing, 2019 IL 124019, ¶ 17 (in
construing a statute, we presume the legislature did not intend absurdity or inconvenience). The
second sentence of subsection (a) accounts for the exception added to the first sentence. No more,
no less. Subsection (a), viewed from its historical evolution, does not support the reading my
colleagues ascribe to it.
¶ 105 Properly construed, subsection (a) allows a stand-alone request to modify parenting time
to be made at any time, within or without the two-year limitation period, subject to the requirement
that such a request must indicate that there has been a simple change in circumstances and the
modification serves the child’s best interests. Like the first sentence, the second sentence also
contains what must be pleaded in a request to modify and sets the time limits for doing so. The
hearing continues to be governed by subsection (c), which changed the default position from shall
not modify to shall modify, changed what needed to be shown from simple change to substantial
change, but also lowered the standard of proof from clear and convincing evidence to a
preponderance of the evidence. My colleagues misconceive the import and effect of the historical
evolution of section 610 to section 610.5, and their resort to this aid in construction is therefore
flawed, leading to an incorrect interpretation.
¶ 106 IV. Stare Decisis
¶ 107 I close with a consideration of stare decisis. “The doctrine of stare decisis is the means by
which courts ensure that the law will not merely change erratically but will develop in a principled,
intelligent fashion.” St. Paul Fire & Marine Insurance Co. v. City of Waukegan, 2017 IL App (2d)
160381, ¶ 29. The hierarchical structure of our courts means that we, as a court, are bound to
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follow the decisions of our supreme court, but we are not required to follow the decisions of equal
or inferior courts. O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440
(2008). With that said, we should be cautious in dispensing with the reasoning of prior decisions,
even of coordinate courts that we are not bound to follow, and absent compelling reasons for doing
so, we should be reluctant to abandon settled decisions in favor of a novel, unsupported rule that
captures the fancy of a majority of the panel. St. Paul Fire, 2017 IL App (2d) 160381, ¶ 29. “At
its best, [the doctrine of stare decisis] is a call for judicial humility. It is a reminder to afford careful
consideration to the work of our forbearers, their experience, and their wisdom.” Brown v.
Davenport, 596 U.S. 118, 141 (2022).
¶ 108 In this case, despite the relatively recent changes to the Act, there is still a small but
important body of authority that we should consider and on which we should rely under the
principles of stare decisis. Foremost is Trapkus, which considered the precise issue confronting
us, and the analysis of which the majority imperfectly distinguishes. This court also decided In re
Marriage of Burns, 2019 IL App (2d) 180715, ¶ 26, which held that the trial court “has the
authority to modify a parenting plan or allocation judgment pursuant to section 610.5(c) of the Act
if (1) a substantial change has occurred since the existing parenting plan or allocation judgment
was entered and (2) the modification is necessary to serve the child’s best interests.” This is exactly
what the plain language of section 610.5 of the Act requires and is also the result of the historical
evolution of the modification provision reveals. My colleagues dismiss Burns because the court in
that case was not required to decide the standard applicable to a stand-alone request to modify
parenting time. Supra ¶ 55. Notwithstanding the precise issue, Burns applied the correct standard
and is due some measure of consideration for enunciating the proper standard to apply to a hearing
to modify a parenting plan or allocation judgment, which, as my colleagues and I note, includes
parenting time.
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¶ 109 In addition to Trapkus and Burns, there are several unreported cases that employ the same
analysis as I used here. In In re Marriage of Heaver, 2025 IL App (2d) 250021-U, this court
endorsed the substantial-change standard applied in the trial court. We noted that subsection (c)
provided the framework for the trial court to conduct its hearing (id. ¶ 17), and we held that the
petitioner had proved both a substantial change in circumstances and the other necessary
allegations in his request to modify (id. ¶¶ 20, 26).
¶ 110 In In re Marriage of Gill, 2025 IL App (5th) 240890-U, ¶¶ 26-28, the court considered the
mother’s argument that the father had failed to prove by a preponderance of the evidence that a
substantial change in circumstances occurred sufficient to justify changing the majority of the
scheduled parenting time from the mother to the father. The court deemed that section 610.5(a)
allowed a motion to modify parenting time that showed both changed circumstances and the
necessity of modification to serve the child’s best interests. Id. ¶ 27. Section 610.5(c) dealt with
the resolution of the motion to modify parenting time by setting up a two-step process: the trial
court must first determine whether the moving party established, by a preponderance of the
evidence, that a substantial change in circumstances had occurred based on facts that had arisen
since the entry of the existing parenting plan, and, if so, whether modifying the existing plan would
be in the child’s best interests. Id. ¶ 28. Thus, Gill treated subsection (a) as the gateway to the
evidentiary hearing, for which the evidentiary burden of proof was provided in subsection (c).
¶ 111 In In re Marriage of Mark O., 2024 IL App (4th) 230875-U, ¶¶ 16-20, the respondent
argued that the trial court did not make the proper findings pursuant to section 610.5(a). She argued
that the petitioner was required to plead and the court to find that the child was seriously
endangered in his environment before the parenting plan could be modified. Id. ¶ 16. The court
determined that the motion to modify had been filed after the two-year time limit, and therefore,
there was no requirement for the petitioner to plead, or the court to find, serious endangerment to
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the child. Id. ¶ 18. The court also noted that the Act deemed allocation of parenting time and
allocation of parental decision-making responsibilities to be “two independent things,” with the
allocation of parenting time never being subject to the two-year requirement of subsection (a). Id.
¶ 19. Mark O. thus treated subsection (a) as setting forth solely the timing and pleading
requirements of a petition to modify, not the substantive requirements necessary to prevail at a
hearing. 8
¶ 112 In In re Marriage of Bastian, 2023 IL App (3d) 220163-U, ¶ 9, the respondent filed a
motion to modify parenting time. The petitioner appealed the trial court’s denial of her motion to
dismiss the motion to modify for failure to state a claim. Id. ¶ 24. The appellate court held that the
respondent had satisfied the pleading requirements for the motion to modify by alleging changed
circumstances. Id. ¶¶ 26-27. The appellate court also held that the hearing was properly conducted
under section 610.5(c) and that the trial court’s determination under subsection (c) was not against
the manifest weight of the evidence. Id. ¶¶ 29-31.
¶ 113 In In re Parentage of D.R.B., 2023 IL App (1st) 221074-U, ¶ 59, the court fully endorsed
the substantial-change standard: “[p]arenting time may be modified upon a showing that a
substantial change has occurred” in the child’s or parents’ circumstances. After a showing has been
made at the hearing, the court is to allocate parenting time according to the child’s best interests.
Id.
8
I note that Salbi, 2024 IL App (2d) 240322-U, ¶ 70, relied on Mark O. for the proposition that the
allocation of decision-making responsibilities and the allocation of parenting time are distinct and
independent, but Salbi failed to then consider the import of its placement in a subsection devoted to timing
and pleading requirements. My colleagues retain the Salbi proposition without attribution and represent it
to be a simple matter of plain-language interpretation. Supra ¶ 32.
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2025 IL App (2d) 240028
¶ 114 In In re Marriage of Robin L., 2022 IL App (4th) 220472-U, ¶ 13, the respondent argued
that the trial court used the incorrect, simple-change standard of subsection (a), instead of the
correct, substantial-change standard of subsection (c). The court analyzed the parties’ arguments
in which “the only position presented to and recognized by the [trial] court prior to the oral
pronouncement of the decision was that there had to be a substantial change in circumstances
before any modification could be ordered.” Id. ¶ 15. The court held that the trial court used the
proper subsection (c) standard of substantial change because it analyzed the evidence from the
hearing pursuant to whether any of the changes presented had been anticipated, and it followed the
law and did not apply a nonexistent legal standard. Id. ¶¶ 16-17.
¶ 115 These unreported cases reinforce the proper construction of section 610.5. In each,
subsection (a) was deemed to cover the timing and requirements of a motion to modify parenting
time, and subsection (c) governed what needed to be proved at the hearing.
¶ 116 Stare decisis also requires that I approach Salbi and Erik S. with the same caution and
humility with which I approach Trapkus, Burns, and the unreported cases—giving careful
consideration to the work of my colleagues, their experience, and their wisdom. Brown, 596 U.S.
at 141. My colleagues essentially repeated and augmented Salbi’s analysis in this case, and I have
discussed my disagreement. Likewise, Erik S. was based on a mischaracterized view of section
610.5, which undermines any value and guidance it could bring to the table. I believe I have
adequately considered, in the proper light, Salbi and Erik S. and have provided adequate reasons
for rejecting them, notwithstanding stare decisis.
¶ 117 I would affirm the trial court’s judgment in all respects. Despite the challenges of this case,
the court recognized that subsection (a) did not substantively govern the evidentiary standards and
burden of proof at the hearing on respondent’s stand-alone request to modify parenting time. For
the foregoing reasons, therefore, I respectfully dissent.
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2025 IL App (2d) 240028
Reynolds v. Reynolds, 2025 IL App (2d) 240028
Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 16-
FA-130; the Hon. Robert J. Zalud, Judge, presiding.
Attorneys Randy K. Johnson, of West Dundee, for appellant.
for
Appellant:
Attorneys Jamie R. Wombacher, of Law Offices of Lee & Wombacher,
for LLC, of Woodstock, for appellee.
Appellee:
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