In 2018 (and again in 2019), a 50/50 parenting time bill created controversy in Illinois. Proponents were from the father’s rights camp and steadfastly promoted the 50/50 parenting-time presumption. There were strong-arm tactics to try to push through the various 50/50 parenting bills in 2018. This is part of a national outreach from organizations such the National Parents Organization, whose original name was the Foundation for Fathers and Families.
In 2020, HB 185 (and Committee Amendment No. 1) renewed the push from the father’s rights community to enact a 50/50 presumption in Illinois. And this parenting time bill received substantial press with the Chicago Mayoral candidate, LaShawn Ford being its main sponsor and biggest backer. The Illinois chapter of the American Academy of Matrimonial Lawyers has voted unanimously against both HB 185 as HCA No. 1.
The Original Bill: The original bill would have changed the definition section to provide that, “the involvement of both parents for equal time is presumptively in the best interests of the children.” It would eliminate the language, “Nothing in this Act requires that each parent be allocated decision-making responsibilities.”
It would further amend 750 ILCS 5/602.7 regarding Allocation of Parental Responsibilities: Parenting Time and would provide: “Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time. There would be a rebuttable presumption that it is in the child’s best interests to award equal time to each parent.”
Regarding findings, it would have similar provisions to the child support guidelines and the maintenance guidelines. It would create a mandate that if the court were to deviate from the presumption for equal parenting time, the court would have to issue a written decision setting forth its specific findings of fact and conclusions of law in support of the deviation. More specifically, the law would provide: “If the court deviates from the presumption contained in this subsection, the court shall issue a written decision stating its specific findings of fact and conclusions of law in support of the deviation from the presumption.”
Regarding restrictions on parenting time, it would make an already difficult proposition even more difficult. It would provide within 750 ILCS 5/603.10, “The court shall issue a written decision stating its specific findings of fact and conclusions of law in support of its ruling.”
House Committee Amendment No. 1: HCA No. 1 was a delete and replace amendment. It would make three critical changes to Illinois parental allocation law.
Implication that Equal Decision Making Required: It would first remove from Illinois the provision: “Nothing in this Act requires that each parent be allocated decision-making responsibilities.” By implication regarding rules of construction, it could be argued that the amendments would require equal decision making. The 2016 rewrite to the 600 series of the IMDMA sought to gently remind judges that they must follow the best interests of children standard. One of the tools available to the judge in advancing this concept is the provision that nothing in this Act requires that each parent be allocated decision-making responsibilities. It affirms that children’s best interest come first. Nothing is gained by deleting this reminder nor is it understood what are the unintended consequences of its deletion.
Conflation of Standards Applying to Third Parties with Standards Applying to Each Parent: HCA No. 1 would also presume not only that both parents are fit but also provide, at Section 602.7, that:
It is presumed both parents are fit and fit parents act in the best interest of their children, therefore the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence…
The amendment confuses the “fitness” standard applicable to third-party litigation against natural parents with the best interests’ standard concerning parenting time in an action between natural parents. Constitutionally, there are certain rights that fit parents have against non-parents including grandparent visitation case law. Current law already acknowledges that it is presumed both parents are fit parents in order to minimize potential litigation between the parents. But House Bill 185 attempts to take language that protects natural parents from third party litigation against the parents and apply it to litigation that is between parents. Parents, fit or not, do not always act in the best interests of their children when their own interests are involved. If they did, there would be no need for judicial intervention, because parents would simply “do the right thing” and put their children’s best interests above their own, always. These are case-by case determinations.
Deletion of the Critical Third Statutory Factor in Allocating Parenting Time: It would delete the third statutory factor in allocating parenting time. This factor did not incorporate the approximation rule in the American Law Institute’s treatise but it did allow the court to consider the parent’s previous caretaking pattern. Thus, the amendment would eliminate the factor that reads:
the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth.
By eliminating this statutory factor, it would purposefully remove the provision in Illinois law that allows a judge to consider the family’s previous pattern of caretaking for the children. Under rules of statutory construction, the amendment would therefore prevent the judge from considering the amount of time each parent spent performing caretaking functions of the children before the divorce occurred. It makes no practical sense to eliminates judicial consideration of perhaps the most important factor in determining what arrangements will best serve the children post-divorce: the arrangements the parties themselves had in place before divorce. Which parent has done what is a critical criterion for the judge to consider in determining how to minimize disruption in a child’s life from the parent’s divorce.
General Comment: Illinois law was already radically changed regarding the entire Section 600 series of the Illinois Marriage and Dissolution of Marriage Act. Those changes in our statutory law framework should be given greater time to settle rather than continue to make a change such as a 50/50 presumption. As a result of the 2016 rewrite to Illinois law, we have already seen parenting plans in Illinois be far more “father friendly.” Our income-shares statute also gave the non-residential parent an incentive in a sense to day-count. More on point, it gives the non-residential parent seeking to pay a lower child award, the incentive to count overnights. That has become the new norm because of the provisions in the Illinois income-shares law that provide for a significant reduction in support if a parent has at least 146 overnights per year.
Proponents of bills such as this conflate shared parenting-time schedules with 50/50 parenting-time presumptions. The trend that we have seen in Illinois toward more and more shared parenting time schedules provide for a more equitable allocation of parenting time has been a good thing. A one-size-fits-all 50/50 parenting time presumption would not be.
What we have seen with the maintenance guidelines is that while they were posted as a “starting place” they have in fact become the norm. The same thing is predicted for what would happen with parenting plans if there were a 50/50 parenting time presumption. Such as presumption would not be centered around what is in the best interest of the children. There are cases where equal parenting time is appropriate. But we see from other states that once this is a presumption it becomes the norm and it is only in the rare case that it is varied from.
Nationwide Trends: A good recent article on the national trend is a 2016 Pew Article. That article had stated:
Laws that encourage shared parenting may sound “seductive” to state lawmakers, but they often force families into bad situations, said Maritza Karmely, a professor at Suffolk University Law School in Boston. Bar associations, judges and lawyers have come out against some of the proposals.
“A presumption is a pretty radical step,” Karmely said. “That assumes that shared parenting works for most families, and I think that is an enormous assumption.”
What we have seen nationally is that red states tend have tend to award equal parenting time. For example, in Wisconsin there is a provision that there is a rebuttable presumption that the parties will not be able to cooperate regarding decision making issues in cases of domestic abuse. But in Wisconsin the law provides that each parent shall have regularly occurring, meaningful periods of physical placement with each parent. But that is not tantamount to a presumption of equal placement. Nationally, a father is likely to receive somewhat more than 35% of the parenting time (but note that this is based upon outdated statistics). Yet currently we are seeing a push for equal parenting time presumptions and it is anticipated that there will be a continue to be a push for this one-size-fits-all “solution.”
A December 2017 Washington Post article summarized:
The legal push for custody arrangements follows years of lobbying by fathers’ rights advocates who say men feel alienated from their children and overburdened by child-support obligations. This movement is gaining new traction with support from across the political spectrum, as more lawmakers respond to this appeal for gender equality and, among some conservatives, the frustration of a newly emboldened constituency of men who say they are being shortchanged.
The well-balanced Post article also stated:
Critics of the bills, including women’s rights groups and some legal associations, say that stricter laws will roll back important protections against abusive or controlling former spouses and take discretion away from judges who are tasked with deciding what is in the best interest of children. They also say that the bills, which would directly apply to only the 10 percent or so of divorcing parents who cannot come to an agreement, are unnecessary because more divorcing parents are already choosing shared custody. Laws that require joint physical custody could also lead to the elimination of child support in some states, women’s advocates say, disrupting a system that was designed to help women, who have historically been paid less in the workforce while performing more unpaid labor at home.
The trend toward a more equitable parenting-time split is a helpful one and consistent with the best interest of the children. What we have seen with child support and maintenance guidelines is that a presumption becomes much more than a rule of safe harbor. It becomes the result in all but the most unusual cases. The child support guidelines are based upon statistics regarding the cost of raising a child. An equal parenting-time presumption would result in child support awards that would dramatically be reduced in many cases. But more importantly, the Illinois bill would create an uphill battle for individuals such as victims of domestic violence to combat equal parenting time schedules.
Finally, it appears that the latest attempt via delete and replace amendment of HCA No. 1 is an effort to create less and less judicial discretion in the area of parental allocation. The amendments each are unnecessary and have consequences that cut against the best interest of the children standard.