In 2018, the 50/50 parenting time bill created controversy in Illinois. Proponents tended to be 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.
HB 185 renews the push from the father’s rights community to enact a 50/50 presumption in Illinois.
Provisions of the Bill: The new law would change 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 is a rebuttable presumption that it is in the child’s best interests to award equal time to each parent.”
As to findings, it would follow the child support guidelines and the maintenance guidelines and require that if the court were to deviate from the presumption for equal parenting time the court would be required to issue a written decision stating its specific findings of fact and conclusions of law in support of the deviation from the presumption. 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.”
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 seem parenting plans in Illinois be far more “father friendly.” Our income shares statute also gave the parent an incentive in a sense to day-count or more specifically to counter overnights. That has become the norm because of the provisions in the income shares statute 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 an 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 tended to move toward a presumption of 50/50 parenting time. 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 about 20 states have a presumption for 50/50 parenting time and there will be a continuing 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.
Of nearby states, note that while Illinois is not a 50/50, Wisconsin and Missouri have an equal parenting time presumption state while Iowa and Indiana do not.
Sidenote: In a State such as Wisconsin, we are seeing the most common formula being either a “2-2-3” schedule or a “2-2-5-5” schedule.
- 2-2-3 Sample Schedule: The parents alternate placement every 2-3 days over a repeating 2 week time period
- Week 1: Monday/Tuesday = Parent A, Wednesday/Thursday = Parent B, Friday/Saturday/Sunday = Parent A.
- Week 2: Monday/Tuesday = Parent B, Wednesday/Thursday = Parent A, Friday/Saturday/Sunday = Parent B.
- 2-2-5-5 Sample Schedule: Each parent is assigned a repeating 2-day period during the week, and alternating the 3-day weekend, so as to give each parent a 5-day period of placement every two weeks
- Week 1: Monday/Tuesday = Parent A, Wednesday/Thursday = Parent B, Fri/Sat/Sun = Parent A.
- Week 2: Mon/Tues = Parent A, Wed/Thurs = Parent B, Fri/Sat/Sun = Parent B.