A 2016 update to the Illinois Marriage and Dissolution of Marriage Act has changed the way courts and judges divide parenting rights and responsibilities. Know the facts before you begin your divorce process.
For married couples with children planning a divorce, and for unmarried parents, the determination of when and how you will divide parenting rights and responsibilities is typically the most important and emotionally-charged part of the legal process. The custody laws in your state will set the parameters for your custody arrangement, but many factors unique to your circumstances and your relationship will ultimately determine the outcome in your case. A thorough understanding of how the custody decision process works will help you navigate the process as smoothly as possible. Read on to learn how judges and the court system in Illinois determines the division of parenting rights.
Illinois Custody Law
In some states, the law distinguishes between custody in terms of “sole” or “joint” custody — whether one or both parents will be assigned total or shared parenting duties, including decision-making power — and between “physical” and “legal” custody — where physical custody determines which parent the children will primarily live with, and legal custody defines which parent is empowered to make legal decisions for the child.
Illinois custody law does not consider these distinctions independently. If a judge determines that two parents will share custody of their child or children, then those specifics regarding divisions of legal decision-making power and the distribution of shared and separate parenting time are ironed out on a case-by-case basis considering a variety of factors – all founded upon the best interests of the child.
Key Terms: Allocation of Parenting Time
It’s important that parents understand key terms in family law that relate to divorce and marriage dissolution, including some that are unique to Illinois. First, know that two terms commonly referenced in divorce proceedings — “custody” and “visitation” — are no longer the correct legal terms applied in Illinois family law. Since the Illinois Marriage and Dissolution of Marriage Act took effect in January 2016, these terms have been replaced by “assignment of parental responsibilities” in lieu of custody, and “parenting time” in lieu of visitation.
Assignment of Parental Responsibilities
“Assignment of parental responsibilities” refers to how decision-making authority over a child’s life, including major decisions like schooling, religion and medical care. Similar to the concept of legal custody, the assignment of parental responsibilities in Illinois evaluates how parents will share these decision-making powers by considering each subject individually, and assigning authority over each based on the family’s unique circumstances. This can result in a wide variety of possible combinations: For example, a judge may decide that the mother will be empowered to make decisions regarding the healthcare of the child or children, but that the father has authority over the child or children’s education and extracurricular activities. A judge can also decide that, in some areas, both parents are responsible for making these decisions together.
Factors considered by Illinois courts to determine the division of parenting time according to the best interests of the child can include, but are not limited to:
The wishes of the child, taking into consideration the child’s maturity and ability to express reasoned and independent preferences as to decision making;
The child’s adjustment to his or her home, school, and community;
The mental and physical health of all individuals involved, including the child and both parents;
The ability of the parents to cooperate with decision-making for the child, or whether the level of conflict between the parents might affect their ability to share decision-making responsibilities;
How much each parent participated in past decision-making responsibilities for the child;
Any prior agreement or course of conduct between the parents relating to the decision making for the child;
The wishes of the parents;
The child’s needs;
The distance between the parents’ homes, the cost and difficulty of transporting the child, the daily schedules of each parent and child, and the ability of both parents to cooperate in the parenting time arrangement;
Whether a restriction on decision-making is appropriate under Section 603.10 (whether one parent acted in a way that seriously endangered the child’s physical, moral, mental health or emotional development);
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
Any other factor that the court finds relevant.
Since Illinois family law considers the division of parenting rights and responsibilities in a more holistic way, the state has also migrated away from referring to the division of parenting time in terms of “residential custody” and “visitation.” Instead, the court approaches how parents will share child care as the division of “parenting time.”
Unlike custody determinations which can be as black-and- white as “sole” or “joint,” parenting time allows for diverse combinations of parenting time schedules that take each parent’s circumstances into consideration to find a combination that serves the best interests of the child. Current Illinois law states that if one parent has not been granted significant decision-making power under the assignment of “parental responsibilities,” that parent will be entitled to a reasonable parenting time schedule with the child.
Determining how parents will restructure their roles and responsibilities in the lives of their children is the most complex and important negotiation in any separation. An experienced attorney is essential to ensure your circumstances and your fitness as a parent are accurately represented and secure a fair outcome in the division of parenting duties. Mike Schiffman and the team at Schiffman Family Law has more than 35 years of experience representing parents in divorce and custody cases. Read what his clients and other attorneys have said about his expertise in family law, and contact his office today for a free, confidential consultation.