In any divorce case involving children, the well-being of the child should come first. Unfortunately, when divorcing parents are at war, the children often suffer most.
On January 1, 2016, Illinois became a trendsetter by changing child custody laws and terminology for the first time in 37 years. The main purpose of the changes is to recognize and support the rights of children and parents to have a healthy and safe relationship with each other and to ensure predictable decision-making for the care of children.
The words “custody” and “visitation” have fundamentally been banished. Instead, the law now speaks in terms of “parenting time” and “allocation of parental responsibilities” to consider the “best interests of the child.”
The compassionate and experienced Illinois family law attorneys at Wolfe & Stec understand the stresses of divorce and recognize that children’s well-being is paramount. We offer a free initial consultation and will work with you to examine your individual situation and help come up with solutions that are best for you.
The ideal arrangement for child custody varies greatly, based on the individual family situation, but it should always first consider the best interests of the child. It is always best if parents can come to an agreement on their own as to how parenting time will be allocated based on considerations such as the distance between the two homes, the child’s school and extracurricular activity schedules, both parents’ work schedules, and help available from grandparents or other relatives. If parents cannot agree, the courts will make this determination according to the “best interest of the child” standard by considering the following factors:
Illinois law generally recognizes that while normally the best interests of the child are fostered by having a healthy and close relationship with both parents, needs of children change as they mature. The courts try to make sure the child has support and quality time with both parents, provided that the environment is safe.
In a divorce situation, children are best off with parenting time schedules that allow them to have their lives disrupted as little as possible, so they continue with their friendships, school schedules, and activities. Plans for parenting time should identify and let children know how and with which parent they will spend vacations, birthdays and holidays, what their transportation arrangements will be, when supervision is required, and other considerations that affect both parent and child.
Factors to be considered in visitation schedules may include the age, gender, maturity level, intelligence, ability to tell the difference between right and wrong, whether a child has any preference or hostility toward the parent and if so, why. It is recognized that when a child reaches their teens they need a schedule that fits with their social life and activities.
In most situations, family members can have visitation with the child during the period when the parent related to that member has parenting time. If the relationship with the other spouse is good, that spouse may agree to visitation during their parenting time period as well.
In complicated situations, Illinois law provides that a grandparent, great-grandparent, or sibling of a minor child may petition the court for visitation rights when at least one of the following conditions exists:
In determining whether to grant visitation, the court may consider factors including whether the child resided in the home of the grandparent, great-grandparent, or sibling for at least 6 consecutive months, and whether the grandparent, great-grandparent, or sibling was the primary caregiver for the child for at least 6 consecutive months.
If you have legitimate concerns about your children’s safety when they are with the other parent, there are ways to restrict their parenting time.
Illinois law [750 ILCS 5/602.7(b), 2016.] lists the sorts of orders “necessary to protect the child” and allows “any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.” In cases where courts find parents have acted in a way to endanger the child and that unsupervised visitation would seriously endanger the mental or physical well-being of the child, Illinois judges may order visitation to be supervised, or even denied.
Serious endangerment has been found where there is a history of driving while intoxicated, drug or alcohol use, physical or sexual abuse, parental alienation, or a realistic threat that the non-custodial parent may abscond with the child. If this is proven after a hearing, then the court will enter an order as necessary to protect the child.
A petition to the courts requesting restrictions to parenting time is often done on an emergency basis if a child is endangered. At that time a temporary order may be entered until a hearing is held. If the court determines that a restriction to parenting time is necessary to protect the child, the court will restrict parenting time by issuing an order to reduce or stop parenting time or order that certain third parties be barred from being present during parenting time.
If this order is only temporary, the court might order the restricted parent to complete certain requirements, such as taking parenting or anger-management classes, therapy sessions, or drug or alcohol abuse treatment. Parenting time can be ordered to be supervised by a neutral family member, at a facility or with a professional supervisor.
Old Law — Previously, custody law in Illinois generally depended on whether parents were granted joint custody or sole custody. If parents had a joint custody agreement, both would typically share in making decisions about the major areas of the child’s life. With a sole custody arrangement, one parent would have the final decision-making authority over these matters.
New Child Custody Law — Instead of granting “custody,” the courts now refer to the “allocation of parental responsibilities.” As before, one parent may still have most of the decision-making responsibilities, or these responsibilities may be split between the parents. The difference is that the court now will determine which parent should be responsible for each area of life. For example, a judge may decide that one parent will be responsible for decisions on education and extracurricular activities, and the other will be responsible for decisions on healthcare. Or, both parents may be responsible for the decisions in any or all areas.
To help the judge decide, the parents, either together or individually, now file a parenting plan. This plan sets out how major decisions will be made regarding which school the child attends, what doctor they see, when they will spend time with each parent, and other vital areas. The court must approve the parenting plan unless it finds one parent was forced into it involuntarily.
If parents can’t agree, they will be required to mediate their differences in a process where a trained professional helps the parents decide what’s best for the child. Parents typically split the cost of mediation unless they have a documented inability to pay. The court may then appoint a mediator free of charge. If parents are still unable to agree after mediation, the court will hold a hearing and decide upon a parenting plan.
Parenting plans also identify how children will spend birthdays and other holidays; transportation arrangements; when supervision is required; and other considerations.
Old law — In the past, “visitation time” was the term which referred to the schedule which arranges when each parent will have the child with them. One parent was often granted “residential custody” or “primary physical possession” of the child and the other parent would then be the “non-custodial” parent and would be granted a reasonable “visitation schedule,” often alternating weekends, some time on one day during the week, and alternating holidays.
New Law – “Parenting Time” is the new term for visitation. The children may spend most of their time with one parent, or they may split their time with both, but now neither parent is labeled the primary or made to feel as the secondary parent. Also, the new law provides that a parent who has not been granted significant decision-making activities will be entitled to a reasonable parenting time schedule with the child. Decision-making rights and parenting time rights are no longer tied together.
The term “visitation” may still be used in situations such as when dealing with third-parties, such as with “grandparent visitation.”
The Illinois Marriage and Dissolution of Marriage Act has the goal of not diminishing the parent who has less parenting time and of allowing that parent to still be equal in making decisions. In setting up the allocation of parenting time and allocation of parental responsibilities, the courts will consider factors such as:
Illinois child custody laws stipulate that children 14 and older may choose which parent to live with, but the judge may overrule this decision if it is determined that it is not in the child’s best interests.
Since issues regarding parenting are so complex and vital to a child’s well-being, it makes sense to seek legal counsel. The skilled Illinois family-law attorneys at Wolfe & Stec, Ltd. know the laws and the system and can guide you through the process. We represent and advise clients in all types of child custody matters.
Don’t delay. For a free initial consultation with an experienced and compassionate DuPage County custody lawyer, contact us online or call 630-305-0222 for a free initial consultation.
During trial four experts all testified against our client the Judge found it was in the best interest of the child that our client be awarded custody. We have successfully represented clients in numerous child custody cases.
We recently analyzed a case whereby the opposing side was seeking a substantial award of maintenance against our client. After a thorough review of the facts and circumstances and several hearings, our client’s obligation to pay maintenance was limited to two years at half of what his former spouse was seeking.
After our client voluntarily changed employment we were able to obtain a substantial reduction in child support payments. We have also stopped such reductions when representing clients receiving child support.