Custody of Children: Allocation of Parental Responsibilities
Commencing January 1, 2016, Illinois law no longer refers to the term “child custody.” Nor is “visitation” a term that divorce lawyers in Illinois should be using. Clearly with the 2016 changes to Illinois law the goal is to avoid battles even of which parent will be the named as the primary residential parent because that term is not in the law. It remains to be determined, however, the impact of all these changes on what has been one of the most intensely litigated issues in divorces. In short, where the term “visitation” had been used staring January 1, 2016, the law uses the terms “parenting time.” And where “custody” was used the 2016 law uses the term “parental responsibility.”
Who is awarded custody (parental responsibility) of the children?
Illinois law no longer presumes the mother should have primary parental responsibility (custody), or in fact that either parent would have primary residential care. Child custody law is gender neutral. Cases involving either the issue of parental responsibility (major decisions affecting the children) or allocation of parenting time are decided on the basis of what is in the best interest of the child in both divorce and paternity cases.
I have heard it is extremely difficult for fathers to be awarded the majority of the parenting time in Illinois. Is this true?
There have been studies as to fathers' chances for success in contested cases involving the issue of parenting time or parental responsibility (custody). In one study, involving cases which were not contested, mothers received custody in approximately 90% of the cases. In cases that were contested, fathers won custody in approximately 60% of the cases. Overall, the percentage of cases in which mothers received custody was greater than 88% of the cases.
Aren't mothers usually awarded the majority of the parenting time?
Yes, but these are cases which are settled and not tried. Lawyers should advise their clients that custody is usually determined on the basis of who has historically been the primary care-taking parent. In our society it has often been the mother who is the primary care-taking parent. But the 2016 change in Illinois law regarding allocation of parenting time is reflective of the changes since it is now often more the rule that both parents are in the workforce.
So, I have heard that Illinois law now in refers to “caretaking functions.” What does that mean?
This is a term that generally refers to decisions within each parent's control when he or she has parenting time. It is defined as, “tasks that involve interaction with a child or that direct, arrange, and supervise the interaction with and care of a child provided by others, or for obtaining the resources allowing for the provision of these functions.” It then provides that the term includes a list of 8 things:
satisfying a child's nutritional needs; managing a child's bedtime and wake-up routines; caring for a child when the child is sick or injured; being attentive to a child's personal hygiene needs, including washing, grooming, and dressing; playing with a child and ensuring the child attends scheduled extracurricular activities; protecting a child's physical safety; and providing transportation for a child;
directing a child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation;
providing discipline, giving instruction in manners, assigning and supervising chores, and performing other tasks that attend to a child's needs for behavioral control and self-restraint;
ensuring the child attends school, including remedial and special services appropriate to the child's needs and interests, communicating with teachers and counselors, and supervising homework;
helping a child develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members;
ensuring the child attends medical appointments and is available for medical follow-up and meeting the medical needs of the child in the home;
providing moral and ethical guidance for a child; and
arranging alternative care for a child by a family member, babysitter, or other child care provider or facility, including investigating such alternatives, communicating with providers, and supervising such care.
So why is this list of caretaking functions important for the Illinois law starting in 2016?
During each parent's parenting time that parent is responsible for caretaking functions and “non-significant decision making.” By creating this expansive list it is anticipated that it will be more difficult to restrict the authority of the parent of either parent.
What does “significant decision making responsibilities” mean?
Significant decision making responsibilities can be agreed upon between the parties or allocated by the court. They can be made to either one or to both parents. An allocation to both parents is closest to what Illinois divorce lawyers have called “joint legal custody” although that term does not appear in the 2016 law. Under the 2016 amendments, significant issues include:
But note that the law also provides that, “A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child's health and safety during that parent's parenting time.” That caveat to this statement should have been that unless parenting time is restricted.
Isn't there an age, like fourteen, when a child can decide with which parent the child will live?
Not in Illinois. That decision can only be made by a child when the child is eighteen, that is, a legal adult. Until the child is eighteen the allocation of parental responsibilities and parenting time cannot be determined based only on the preference of the child. The first factor stated in determining the child's best interest is the wishes of the child, “taking into account the child's maturity and ability to express reasoned and independent preferences as to decision-making.”
Are contested child custody proceedings expensive?
Yes. Whether we call contested cases “custody cases” or “allocation of parental responsibilities” and “parenting time” contests in these cases are contested. It is for this reason that there are a number of means of trying to resolve cases without having to have a trial.
Is it less expensive if a the case is settled?
Yes, but it depends on how high up the ladder to a trial the case goes before it is settled. The further up the ladder, the more the expense.
How about mediation?
Cases involving allocation of parental responsibility (custody), visitation (parenting time), removal (relocation) all are required to go through mediation before trial by rules of court. A mediator does not decide these issues. A mediator attempts to bring the parties to an agreement on the issues.
Let's say that we tried to mediate and it did not work. We had some limited agreements but that was it. What happens next?
After mediation there are generally other steps before the issues can be tried. The judge will frequently order the issue of child custody (allocation of parental responsibility) to be investigated. Investigators are usually professionals in the mental health field who, after the investigation, will report to the court and make recommendations.
About Joint Custody
As of January 1, 2016 the term joint custody no longer appears in Illinois divorce law, although it is anticipated that in practice both lawyers and people going through a divorce may use the term. Basically, the closest that Illinois law comes to this concept is providing that significant decision making responsibility is made jointly — allocated to both parents. Historically, the term “joint custody” has merely meant that both parents must agree on major issues affecting the child, such as major decisions involving education, health and religion. These, however, are not day-to-day issues.
The law changes to allocation of parenting time (the actual time spent with the children) and parental responsibilities (what had often been referred to as joint legal custody although that phrase appears no where in the 2016 law).
Issues involving parental responsibilities would arise, for example, if the a parent wishes to change the religion of the child, place the child in a parochial school or remove the child from a parochial school, and, in regard to health, an optional medical procedure, such as cosmetic surgery.
What is usual parenting time provision if one parent is awarded the significant majority of parenting time?
Historically, for non-infants a fairly standard pattern had been for there to be parenting time on alternating weekends, alternating legal holidays a more or less equal division of the Christmas and spring breaks, at least two weeks during the summer vacation, plus one or two post-school/work evenings once a week, or once every two weeks. But this is far too overly simplistic because parenting time allocations cannot be broken down into a one-size-fits-all pattern.
Some cases are resolved in which the parents have relatively equal parenting time. Historically, if the matter is contested, the courts generally will not order equal parenting time, however, if the parents reach an agreement in which the children are shared on a relatively equal basis, the courts will generally approve that agreement.
Recommendations by a Evaluator re Children's Best Interest
Professional recommendations by a court ordered evaluator regarding the best interest of the child to the judge are significant, but the recommendation, while influential, does not decide the case. The recommendation is but one of the factors the judge will consider in deciding parenting time and parental responsibilities.
Fathers represented by “Men's Rights Lawyer”
Will a father do better in court or in negotiations regarding child custody and child support if he is represented by a lawyer who advertises himself as a “Father's Rights Lawyer?”
No “Men's Rights” and Father's Rights is not a legal specialty. It is an advertising slogan. There is no course of study or recognized training to become a “Men's Rights” lawyer. Illinois does not recognize specialties in the law. What a father needs in seeking an allocation of parenting time or parental responsibilities is the best lawyer he can afford.
Are child support laws stacked against the father?
No. Many people believe that the child support laws require the non-custodial parent to pay child support of 20 percent of net income for one child, 28 percent for two, 32 percent for three, etc. Under the January 1, 2016 law, even that cannot be stated with as much certainty as before because the law does not define a custodial parent. This is because the law regarding child support uses a circular definition, “the term ‘supporting parent' means “the parent obligated to pay support to the other parent.”
Some fathers seek at least an equal allocation of parenting time to save child support money. This is a mistake. Truly, these issues should be independent and made based on what is best for the children.
Is it difficult to restrict parenting time (visitation)?
Yes. The 2016 law arguably makes it more difficult to restrict parenting time. It provides, “Restriction of parenting time” means any limitation or condition placed on parenting time, including supervision.” It then presumes that both parents are “fit” and provides that, “the court shall not place any restrictions on parenting time…, unless it finds by a preponderance of the evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health.
So, what are the 2016 standards if parenting time is restricted?
The law provides that if the court finds that a parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development, the court shall enter orders as necessary to protect the child. Illinois law then provides an example of the sorts of orders as “necessary to protect the child.” While there are 8 specific factors in this list the first 6 are:
a reduction, elimination, or other adjustment of the parent's decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;
supervision *** ;
requiring the exchange of the child between the parents through an intermediary or in a protected setting;
restraining a parent's communication with or proximity to the other parent or the child;
requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time;
restricting the presence of specific persons while a parent is exercising parenting time with the child; ***
The final “catch all” is: “any other constraints or conditions that the court deems necessary to provide for the child's safety or welfare.”
But remember, that first that court has to find the parent engaged in conduct that serious endangered the child or significantly impaired the child's emotional development.”
Process Involved Following Mediation
The usual first step is that the judge will order mediation.
If that does not succeed, the judge will likely appoint a mental health professional to evaluate the parents and the child and give the judge a written report.
The judge may appoint a lawyer to represent the best interests of the child.
The parties will have contact in some way with any or all of the professionals appointed.
“Custody” Disputes in the Collar Counties
There are variations for how judges and lawyers practice somewhat depending on the county. The Law Firm of Michael Olewinski handles custody cases in Gundy, Will, Livingston, LaSalle, Kendall County and other nearby counties. Some counties tend to focus more on appointment of a guardian ad litem while others the appointment of what was formerly called a “custody” evaluator is more frequent. You should consult with your lawyer regarding local practice. But there is no requirement to follow what appears to be the local practice and in some instances there may be downsides to doing so including the overall cost of litigation.
Parent Check List for Mediator, Court Appointed Mental Health Professional, or Attorney Meetings
A parent can prepare for dealings with the mediator, court appointed mental health professional, or attorney for the child to prove he/she is the better parent to have custody by:
Keeping a daily log regarding activities with the child.
Making a list of the child's good qualities to share with the interviewer.
Be prepared to state what he/she would consider a good custody result and why. You should be fair and liberal in his/her proposal regarding the proposed parenting time with the other parent.
Being able to articulate why it would be in the child's best interest for the parenting plan that you propose;
Being prepared to discuss your future plans for the child, including school, extracurricular activities, medical care, family and friends.
It is rarely warranted that one parent should be totally negative about the other parent. You should demonstrate objectivity by pointing out any positive parenting skills of the other parent.