Proponents–mainly from the father’s rights camp–steadfastly promote the equal parenting-time presumption. Promoters used strong-arm tactics to try to push through the various equal parenting-time bills. National organizations have supported this legislation. This includes the National Parents Organization (originally: Foundation for Fathers and Families). These parenting time bills received substantial press with former 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 previous iterations of this bill. And, as discussed below, the AAML National has published a Resolution against such bills.
Implication that Equal Decision Making is Required: It would first remove from Illinois the provision: “Nothing in this Act requires that each parent be allocated decision-making responsibilities.”
Consider rules of statutory construction that provide the expression of one thing means the exclusion of the other. By implication, the amendments would presume 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. The Act ensures decisions are based on a child’s best interests by providing that nothing in this Act requires that each parent be allocated decision-making responsibilities. Best interest of the children come first. Nothing is gained by deleting this reminder. Thus, the bill would create an unintended consequences by deleting this phrase.
Conflation of Standards Applying to Third Parties with Standards Applying to Each Parent: Current law presumes that both parents are fit. HB 41 would have add to this at Section 602.7:
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 House Bill conflates the “fitness” standard applicable to third-party litigation with the best-interest’s standard that applies to parenting-time decisions involving natural parents. Fit parents have Constitutional rights in lawsuits against non-parents including the grandparent visitation caselaw. [And this is the reason that you will see, for example, the attempt in HB 1589 a well-intended approach to attempting to provide a broader catch-all under 750 ILCS 5/602.9(c)(2)]. Illinois family law already presumes the fitness of each parent. Thus, Section 602.7 already provides:
It is presumed both parents are fit and 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.
But House Bill 41 takes language that protects natural parents from third party litigation and applies it against litigation between parents. Parents, fit or not, do not always act in their children’s best-interests. If they did, there would be no need for judicial intervention. Parents would simply “do the right thing” and put their children’s best interests above their own—always. But we know this is not the case. Decisions involving parenting time and decision-making call for case-by case determinations.
Viewed another way, whether its in a child’s best interests to have joint or sole decisions made about them is not about fitness. Frequently, it’s about whether two fit parents can get along sufficiently to make decisions together.
Deletion of the Critical Third Statutory Factor in Allocating Parenting Time: It would also delete the third statutory factor in allocating parenting time. This factor did not fully incorporate the approximation rule in the American Law Institute’s treatise. Yet it did allow the court to consider the parent’s previous caretaking pattern. Thus, the amendment would eliminate the factor that involves:
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.
Eliminating this factor would remove a critical provision from Illinois law. This allows a judge to consider the family’s previous pattern of caretaking for the children. Let’s go back to our rules of statutory construction. The amendment would prevent the judge from considering the amount of time each parent spent with caretaking functions before the divorce. Yet what serves the children post-divorce? Surely, the arrangements the parties themselves had in place before divorce should be a relevant factor. This provision allows the judge to best minimize the disruption in a child’s life from the parent’s divorce.
Danger to Conflation.
This brings up a related problem. Juvenile court and adoption cases often involve fitness hearings. Wardship and termination of parenting rights involve unfitness issues. Any number of parenting disputes involve severe cases that restrict parenting time altogether. In a sense, these restrictions of parenting time are transitory. An unfitness determination is not transitory. It has potential permanent effects such as a termination of parental rights on a finding of unfitness made within either an adoption of juvenile court proceeding.
Counsel * * * shall appear at all stages of the trial court proceeding, and such appointment shall continue through the permanency hearings and termination of parental rights proceedings…
Caselaw mandates the protections involved in unfitness hearings apply if this is sought in divorce or parentage cases. If this is correct analysis, then conflating what should be a best-interest determination with a fitness analysis would have an unintended effect of triggering the right to court appointed counsel counsel. See: https://www.isba.org/cases/illinois/appellate/2018/02/28/inrecustodyofrw
The take away. This bill if enacted might lead to the right to court appointed counsel for an abusive parent in a divorce or parentage case on a finding of a restriction and allegation of unfitness.
Illinois law was already radically changed with the 2016 Rewrite to the entire Section 600 series of the Illinois Marriage and Dissolution of Marriage Act. Following the Rewrite, we have already seen parenting plans in Illinois that are far more “father friendly.” Our income-shares statute also gave the non-residential parent an incentive to seek additional time: giving that non-residential parent seeking to pay a lower child award, the incentive to count overnights. That has become the norm because of the provisions in the Illinois income-shares law allowing a significant reduction in support if a parent has at least 146 overnights per year.
The trend that we have seen in Illinois is toward more and more shared parenting-time schedules—a positive development in Illinois law. We do not need new legislation that would have unintended consequences for those legislators considering the bill as drafted.
We have seen the argument that our maintenance guidelines were originally posited as just a “starting place.” More than this, judges rarely vary from the maintenance guidelines. We already have a presumption that both parents are fit. And Illinois law already has a high burden to restriction parenting time or decision making. We don’t need to add to this already high-burden.
A good article addressing national trends 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.”
We have nationally seen “red-states” trend to award equal parenting time. Consider a state that is more purple than Illinois: Wisconsin. Wisconsin has the caveat containing a rebuttable presumption that the parents will not be able to cooperate regarding decision making issues in domestic abuse cases. But Wisconsin law provides that each parent shall have regularly occurring, meaningful periods of physical placement with each parent. Yet the Wisconsin provision is not a presumption of equal placement.
Even before the bills presented in 2021 through 2023, I had predicated that we would continue to see 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, consistent with the best interest of the children. We have seen that presumptions become much more than a rule of safe harbor. They become the normal in all but the most unusual cases. Our child support guidelines are based upon statistics regarding the cost of raising a child. An equal parenting-time presumption would result in many dramatically lower child support awards. The Illinois bill would also create an uphill battle for victims of domestic violence to combat equal parenting-time schedules.
HB 41 seeks to chip away at our Rewritten statutory scheme to create momentum toward less-and-less judicial discretion in allocating parenting time and decision making. The amendments are unnecessary. They have consequences that cut against children’s best interest in Illinois. The bill would create unintended effects that should be avoided. Consider the position of the American Academy of Matrimonial Lawyers (National) regarding the 50/50 parenting time bills that continue to promoted annually in state after state. See: AAML Resolution in Opposition to Presumption of Equally Shared Physical Custody, adopted November 2022 by this prestigious group of lawyers. The earlier iterations of current HB 41 had gone as far as explicitly adopting such a presumption. Illinois legislators should be mindful to seek to avoid an incremental approach in allowing through the back door what should not come through the front door.