Until January 1, 2016, Illinois law addressed disputes regarding child-related issues in divorce and parentage cases in terms of “custody” and “visitation.” The term “custody” referred to both decision-making authority regarding the children (called legal custody), and where the children lived the majority of the time (called residential custody). The term “visitation” referred to the time the parent who did not have residential custody had with the children.
If parents were required to consult with one another before making decisions regarding a child’s education, religious upbringing, extracurricular activities, and healthcare, they were said to have “joint legal custody.” If, however, one parent had decision-making authority over these areas, he or she was said to have “sole custody.”
If the children resided with one parent a majority of the time, that parent was said to have “residential custody” of the children. The other “non-custodial” parent had “visitation” rights. However, if the parents had reached an arrangement wherein both had time with the children exactly 50% of the time, then the parents were said to have “split custody” or “shared custody.”
As of January 1, 2016, that terminology has changed. Illinois no longer recognizes the terms custody or visitation whatsoever when referring to a parent’s rights. Those legal concepts no longer exist, though the term “visitation” does survive in the context of third-parties, such as with regard to “grandparent visitation.” Having said that, those words have been commonly used for so long that many people, attorneys and judges among them, will have a hard time eliminating those words from their vocabulary.
Instead, the Illinois Marriage and Dissolution of Marriage Act now refers to two different concepts for parents as it relates to their children: allocation of parenting time and allocation of parental responsibilities.
What do the terms allocation of parenting time and allocation of parental responsibilities mean, exactly? Now that “sole custody,” “joint custody,” and “visitation” are no longer part of the conversation, what should parents be concerned about as they navigate the legal process in a divorce or parentage dispute? With the changes to the law, we do not have precedential case law to help us ascertain how a court may rule on these matters. However, while the vocabulary has changed, the issues remain essentially the same. With which parent will the children spend their time? And which parent will have decision-making authority when it comes to the major issues in the children’s lives?
The law defines “parenting time” as “the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child.” Now there is no such thing as a “visiting parent” or a parent exercising “visitation” with his or her children. Perhaps it’s just a semantic change. On the other hand, this new nomenclature may help to eliminate the diminishment of the parent with less parenting time. In any regard, allocation of parenting time simply refers to where the children spend time, and when. This must be determined in every case.
The law defines “parental responsibilities” as “both parenting time and significant decision-making responsibilities with respect to a child.” Even though there is no longer such a thing as “legal custody,” determining which parent will be able authorized to make major decisions for the children remains one of the key issues before the court. This also must be determined in every case.
Parents are free to come to an arrangement regarding both of these issues on their own. If possible, agreements are almost always preferable to litigation. As long as such an agreed-upon arrangement is not contrary to the children’s best interests, the courts will likely accept it.
If parents cannot reach an agreement, they will be required to attend mediation to try to come to terms. However, mediation is non-binding. As a result, even if an agreement is reached in mediation, a party may back out before it is memorialized in a court order.
If mediation fails, the courts will likely appoint a guardian ad litem to investigate the unresolved parenting issues between the parties. The guardian ad litem reports their findings to the court and makes recommendations as to what would be in the children’s best interests. Ultimately, if no settlement can be reached and the case proceeds to trial, the guardian ad litem typically testifies as a key witness.
The law requires that when the Court allocates parental responsibilities and parenting time, it must “consider all relevant factors,” including but not limited to the following:
(1) The wishes of each parent;
(2) The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences;
(3) 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;
(4) Any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
(5) The interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;
(6) The child’s adjustment to his or her home, school, and community;
(7) The mental and physical health of all individuals involved;
(8) The child’s needs;
(9) The distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
(10) Whether a restriction on parenting time is appropriate;
(11) 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;
(12) The willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
(13) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(14) The occurrence of abuse against the child or other member of the child’s household;
(15) 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; the parties are entitled to a hearing on the issues raised in this paragraph (15);
(16) The terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
(17) Any other factor that the court expressly finds to be relevant.
In order to understand and navigate this newly revised area of Illinois law affecting parents and children in the midst of a parentage or divorce case, please contact us.