Since 2016, Illinois law no longer uses the term “child custody.” Nor is “visitation” a term in Illinois divorce law. Clearly with the changes to Illinois law, the goal was to avoid battles involved in naming the primary-residential parent–because eve that term is not in the law. In short, where the term “visitation” had been used, Illinois law uses the term “parenting time.” And where “custody” had been used, Illinois law uses the term “parental responsibility.”
Who is awarded custody (parental responsibility) of the children?
Illinois does not presume the mother should have primary parental responsibility (custody). There is not even a presumption that one parent should be awarded primary residential care. Child custody law in Illinois is gender neutral. Cases involving either the issue of parental responsibility (major decisions affecting the children) or allocation of parenting time are decided based on 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?
No. It depends on the facts and circumstances of the case! There are statistics of the percentages of mothers and fathers awarded sole custody nationally (but keep in mind that these statistics are skewed because of a number of factors). Nationally, 20% of custody awards are to fathers. Yet in one study involving cases that were contested, fathers won custody in approximately 60% 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 generally advise their clients that custody [read: allocation of primary parenting time] 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. Yet in more and more cases, the father is the stay at home parent, with the percentages often differing substantially by state. The 2016 Rewrite to Illinois custody laws reflects the changes. Currently, in most families both parents are in the workforce.
So, Illinois law refers to “caretaking functions.” What does that mean?
This 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.” Illinois law lists 8 things included in caretaking functions. These are:
- 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?
During each parent’s parenting time, that parent is responsible for caretaking functions and “non-significant decision making.” By creating this expansive list, it has become more difficult to restrict the authority of the parent of either parent in their day-to-day care of their children.
What does “significant decision-making responsibilities” mean?
Significant decision-making responsibilities can be agreed upon between the parents or allocated by the court. They can be made by either one or to both parents. An allocation to both parents is closest to what Illinois divorce lawyers had called “joint legal custody,” although that term does not appear in current Illinois law. Under Illinois law, significant issues include:
- Extracurricular activities.
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.” The exception to this statement should have been–unless parenting time is restricted.
Isn’t there an age, like fourteen, when a child can decide where he or she 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 this age, 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. This takes “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 in Illinois “custody cases” or “allocation of parental responsibilities” and “parenting time,” full blown litigation is expensive. It is for this reason that there are a number of ways to try to resolve cases without having to to 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.
Steps in Illinois Custody Litigation
—How about mediation?
In Illinois cases involving 1) allocation of parental responsibility (custody), 2) visitation (parenting time), and 3) removal (relocation) all are required to go through mediation before trial. A mediator does not decide these issues. A mediator attempts to bring the parties to an agreement on the issues. Click here for the Gitlin Law Firm’s Q&A regarding Mediation. There are certain exceptions to required mediation such as in cases involving domestic violence.
—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?
- If mediation does not succeed, the judge may appoint a mental health professional to evaluate the parents and the child and give the judge a written report.
- The judge also might appoint a lawyer to represent the best interests of the child. Usually, the judge will appoint this lawyer to act on one of three ways:
- A guardian ad litem;
- A child representative;
- An attorney for 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 Gitlin Law Firm handles custody cases in McHenry County, Lake County, Kane County, and other nearby counties. Some counties tend to focus more on appointment of a guardian ad litem. In other counties, the appointment of what was formerly called a “custody” evaluator is more routine. Consult with your lawyer regarding local practice. But there is no requirement to follow what appears to be the local practice. And in some cases, we see downsides to doing so including the overall cost of litigation.
About Joint Custody
Since 2016 the term joint custody no longer appears in Illinois divorce law. Yet people going through a divorce continue to use the term. Basically, the closest that Illinois law comes to this concept involves decision making responsibility. In many or perhaps most cases significant decision-making responsibility is made jointly—allocated to both parents.
Illinois law breaks down what had been called custody and visitation into what is now two things:
- Allocation of Parental Time; and
- Allocation of Decision Making (parental responsibilities)
In Illinois, parenting time is simply the schedule that is established.
What is an example of a dispute involving decision-making responsibility?
Examples are where one parent:
- Wishes to change the religion of the child;
- Place the child a parochial school;
- Have the child placed in an extracurricular activity that requires the other parent’s cooperation.
What is usual parenting-time provision if one parent is awarded the significant majority of parenting time?
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. The overnight parenting time usually depends on the work schedules of the parents and how close the parents live to each other. But there is no one-size-fits-all schedule. Every family is unique.
In a growing number of cases, the parents agree to a relatively equal parenting time allocation. Historically, if the matter is contested, the courts generally will not order equal parenting time. Yet if the parents reach an agreement in which the parenting time of their children is shared on a relatively equal basis, the courts honor such agreements.
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 factor 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. Some lawyers use this as 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. In fact, in higher income cases, Illinois law provides for awards that are significantly lower (as an overall percentage) as compared to our previous simple percentage of the payor’s net income model. Thus, we are seeking more support payor’s seeking to reduce child support. We address this topic separately.
Some fathers seek at least an equal allocation of parenting time to save child support money. This is a mistake. These issues should be independent and made based on the best of the children.
Restrictions on Parenting Time
—Is it difficult to restrict parenting time (visitation)?
Yes. Illinois law makes it difficult to restrict parenting time. Illinois law provides, “Restriction of parenting time means any limitation or condition placed on parenting time, including supervision.” It then presumes that both parents are “fit.” It 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 current 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.”
—Parent Checklist 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:
- Considering a variety of parenting plans in considering:
- the age of the children;
- the distance between the parents;
- The work schedules of each parent.
- Keeping a daily log regarding parenting time actually spent
- But these logs or journals may backfire and consultation with an experienced lawyer is essential;
- Being prepared to state what he/she would consider a good result and why.
- Being liberal in his/her proposal regarding the proposed parenting time with the other parent.
- 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.
—Is there a List of Recommended Do’s and Don’ts for People Going through a Dispute Involving Parenting Time or Parental Decision Making in Illinois?
The Gitlin Law Firm has a list of recommendations for those going through disputes in Illinois involving parenting time or parental decision making: