Last year, the Illinois legislature introduced Illinois House Bill 4113, which was the most politically controversial family law bill in a generation. It proposed a statutory mandate requiring a 50/50 shared parenting time schedule in divorce and parentage cases, except under limited circumstances. The legislation was supported by father’s rights groups, among others, who believe that Illinois law contains an unwritten bias in favor of the mother when it comes to parenting time decisions. They believe that the way to effectively address this bias is with a bright line rule.
At the same time, the legislation was vigorously opposed by a wide variety of individuals and organizations which, according to the Chicago Tribune, included the following:
- The Illinois State Bar Association
- The Chicago Bar Association
- The Kane County Bar Association
- The Du Page County Bar Association
- The Lake County Bar Association
- Illinois Chapter of the American Academy of Matrimonial Lawyers
- Archdiocese of Chicago Domestic Violence Outreach
- Jewish Child & Family Service
- The Illinois Coalition Against Domestic Violence
These and other like-minded groups believe that parenting time decisions should be made on a case-by-case basis, taking into consideration the facts and circumstances of the family and the best interests of the child. They believe that the focus should be on the needs and relationships of the child, not the parents. They say a presumption of equal parenting time improperly places the emphasis on an overly simple bright line test for putting parents on “equal footing,” which could very well be contrary to the best interests of the child.
These philosophical concerns about a shift to a presumption of equal time would seem most salient in cases of domestic violence, high levels of conflict among parents, and in cases that involve substantial geographical distance between the parties’ residences. In such cases, it would be hard to imagine that a 50/50 schedule would ever be workable, much less advisable.
Aside from the philosophical concerns, there were some very practical concerns about last year’s Illinois House Bill 4113. It would have set an extremely high burden of proof on a party who did not want strictly equal parenting time. This year’s House Bill 185 was drafted with the specific intention of addressing those concerns. For starters, the new bill would eliminate House Bill 4113’s high “clear and convincing evidence” burden of proof for deviations from equal time. Under House Bill 185, a parent opposed to equal time would bear the lesser burden of proving by a preponderance of evidence that equal time would not be best for the children.
House Bill 185 also would add to the statutory factors the court should consider in determining the best interests of the child. Specifically, it would have the courts consider, among other things, “the distance between the parents’ residences, the costs and difficulty of transporting the child, each parent’s and the child’s daily schedule, and the ability of the parents to cooperate in the arrangement,” “the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household,” as well as “whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in.”
Even though House Bill 185 clearly addresses some of the practical concerns raised by the opponents of House Bill 4113, it does not address any of the philosophical concerns. The crux of the new proposal is the same as the old one. Specifically, it flips the burden of proof. Under the current law, a party who wants equal parenting time bears the burden of proving that a 50/50 schedule would be in the child’s best interests. If it were to pass, House Bill 185 would presume that a 50/50 schedule is in the child’s best interest, and place the burden of proof on the parent who disagrees with it. The parent opposed to equal time would have to present facts and evidence to justify their position.
This burden of proof is ultimately what the proposed legislation is all about. In any case, the party with the statutory presumption on his or her side has a huge advantage. The party who bears the burden of proof faces an uphill battle.
Finally, there is a less obvious concern lurking just below the surface. Currently, shared parenting time arrangements tend to be the exception rather than the rule in Illinois. Illinois’ child support statute provides for reduced child support payments in cases of shared parenting. A presumption in favor of shared parenting time arrangements would likely make them the norm. As a result, smaller child support awards would also become more prevalent.
Time will tell if the amended bill passes, and what will happen after that. As of February 18, 2019, the bill is before the Family Law Subcommittee. If you feel strongly about the issue one way or another, contact your state senator or representative. The Family Law Subcommittee members can be found HERE.