One of the principal questions that worries an Illinois resident who is contemplating a divorce is child custody. Many people simplify the question as simply “Who gets the kids?” The Illinois legislature changed the question slightly when it passed the Marriage and Dissolution of Marriage Act that became effective on January 1, 2016. The question is now “How will the court allocate parental responsibilities?” Parental responsibilities include decision-making responsibility that affect the children, formerly known as “legal custody,” and parenting time, previously referred to as “visitation.”
Illinois courts now ask every divorcing couple to prepare a parenting plan, a written agreement in which the parents agree to allocate decision-making responsibilities, parenting time or both. The plan must be signed by both parents and submitted to the court within 120 days after either parent files a petition for allocation of parental responsibilities. If the parents do not agree on these issues, the court will issue its own parenting plan. Such plans generally aim to protect the best interests of the child, but courts must consider a number of lesser factors, including:
- The wishes of the child’s parents
- The wishes of the child (this issue carries more weight in the case of older children)
- The child’s relationship with each parent
- The child’s emotional and physical needs
- The degree of each parent’s involvement in decision-making before the divorce
- The child’s adaptation to his or her new community
- The mental and physical health of each parent
- The ability and willingness of one parent to encourage and facilitate a close relationship between the child and the other parent after the divorce is concluded
A number of factors concerning abuse and domestic violence are given significant weight. These factors include:
- Whether domestic violence has been reported in the marriage
- Whether the abuse was directed at the child or the other spouse (The court will consider verbal, physical and emotional abuse)
- Whether one of the parents is a sex offender
Most courts will not consider conduct by a parent that does not affect that parent’s relationship with the child. By the same token, the court may consider any other factor not on the above list that has or may affect the relationship between the child and the other parent.
Parenting time may be the most important aspect of parenting responsibilities for either or both parents. Most Illinois courts recognize this fact, and they take great precautions to safeguard this right. During parenting time, the custodial parent is responsible for exercising caretaking functions. Parenting time will be modified only upon a showing that the parent exercising custody has taken action or failed to take action that seriously endangered the child’s physical, mental, moral or emotional health. If the parents cannot agree on a schedule for allocating parenting time, the court will devise its own schedule and order the parents to abide by it.
Anyone contemplating a divorce that will involve minor children may wish to have an experienced divorce attorney discuss how the court may allocate parental responsibilities if the parents cannot agree. In seeking this review, no one should conceal valuable information from the lawyer, even if the prospective client thinks the information is negative and may affect the court’s decisions on parenting responsibilities. Hiding relevant information will usually have the opposite effect if the evidence comes to light. A judge who thinks that one party is trying to mislead or deceive the court will usually impose harsh measures in the final decree.