Frequently, legal changes do not keep up with society’s changes very well. For example, many internet regulations were enacted in the 1990s, when this technology was in its infancy. Family law is much the same. In the 1970s, as the divorce rate skyrocketed, the American family changed considerably, to say the least. Although the Brady Bunch era quickly became a relic of the past, lawmakers did not enact a co-parenting law in Illinois until 2016.
Today’s Illinois Marriage and Dissolution of Marriage Act ends the old model that children “lived” with one parent and “visited” the other one. Instead, the law now presumes that children benefit from meaningful, consistent, and frequent contact with both parents. In addition to a new presumption, the law has added a few new child custody factors as well. More on these things are below.
However, some things have not changed in this area. The role of a Bolingbrook child custody lawyer is a good example. Since most child custody matters settle out of court, and these negotiations have little judicial oversight, the spouses, and their attorney advocates, have almost exclusive control over child custody matters. This control applies in both initial determinations and subsequent modifications. Parenting time plans are never set in stone. Instead, they must change when certain family dynamics change.
Parenting Time Division Factors
Illinois law has three overarching concerns in this area: the child’s educational needs, the child’s health needs, and the best interests of the children.
Educational needs have social and academic aspects. If Junior is badly bullied at the best school in town, that school probably is not the best place for him. Usually, the spouse who pays child support is financially responsible for health insurance (more on that below). However, not all health insurance plans are created equally.
So, these seemingly straightforward requirements are rather subjective. The best interests of a child are even more subjective. So, in Illinois, “best interests” is not a statement of principle but a reflection of the following factors.
Child’s Wishes
The law usually imposes age-related requirements. Children are old enough to vote at 18 and old enough to drive at 16, at least in most cases. Apparently, the maturity fairy comes the night before their birthdays and endows them with the necessary tools.
But in terms of a child’s wishes in a divorce, there is no age requirement in Illinois. Judges may consider the preference of any child, as long as they take into account the “child’s maturity and ability to express reasoned and independent preferences as to decision-making.”
A child’s voluntary preference is important, but it is not decisive. The judge has the last word. Furthermore, judges are very adept at distinguishing between voluntary, semi-voluntary, and involuntary preferential expressions. Only the first kind is allowable.
Child’s Present Environment
There is an old saying that the devil you know is better than the devil you don’t know. This aphorism often applies in child custody cases.
Divorce is extremely disruptive for children, whether they admit it or not. So, as long as the current informal timeshare arrangement is functional, most judges want to keep it in place, or at most tweak it, instead of starting over and making wholesale changes to the parenting plan.
Physical and Mental Health of All Family Members
All children are unique, which means they all have special needs. Quite frankly, some parents have the mental, emotional, physical, and other tools to meet these needs, and some lack the necessary tools. That doesn’t mean these parents are defective. It just means they are different. At the same time, some children don’t mesh well with some parents.
On a related note, parents often have their own limitations. Substance abuse is perhaps the most common example. If a substance prevents parents from pouring everything they have into their relationships with their children, these parents often do not make effective residential caregivers.
Ability to Co-Parent
For divorced spouses, co-parenting means more than tolerating each other. Co-parenting means actively working with the other parent and actively encouraging children to have a relationship with the other parent.
Some parents have a hard time overcoming anger and other issues arising from the marriage. Other parents work with bulldog Bolingbrook child custody lawyers who contest every minor point. This approach often backfires. It creates the impression that such parents are unwilling to compromise.
Parent’s Wishes
We discussed the child’s wishes above. Now, it’s time to discuss the parent’s wishes. Whether they know it or not, most parents express a preference as to the parenting time arrangement.
Occasionally, parents are willing to accept, or even prefer, a more limited role in this area. More frequently, however, the expression is indirect. Some parents show little interest in the children and/or their activities during the marriage. Such parents usually make poor residential custodians.
Written Agreements
As mentioned, most Will County judges approve most divorce child custody agreements, as long as they are mostly in sync with the statutory factors.
Distance Between Parental Residences
This factor speaks not so much to the designation of a residential custodian but to the nuts and bolts of the parenting time division. As a rule of thumb, the closer the parents live geographically, the more parenting time the non-residential custodian has. If the distance is significant, the divorce decree should include some provisions as to the responsibility for transportation costs.
For various reasons, most people move frequently. So, the applications of this factor change often.
Issues Regarding Domestic Violence
Domestic violence is not just physical. It could also be verbal, emotional, financial, or pretty much anything else.
Such allegations often have a limited effect on child custody orders. No one knows how many spouses fabricate such allegations to get an edge in such proceedings. But these things do happen. Furthermore, if a conviction involved another family or the parent has made some changes since the conviction, such as overcoming substance addiction, the impact on a family law order might be similarly limited.
However, if a verified allegation of current domestic violence exists, that allegation could be a deal-breaker, especially if a child was a victim or witness. In these situations, offending parents often receive few or no visitation rights, at least until they comply with certain conditions.
Modifying Child Custody Plans
Relocation is the most common basis for modification. Most people relocate for lifestyle reasons, career reasons, or to be closer, or further away from family.
Note that these reasons reflect the best interests of the parents. From that angle, judges should rubber-stamp all relocation requests. But that’s not the way it works. As mentioned, the standard is in the best interests of the children as opposed to the best interests of the parents.
The law regarding move-away modifications is quite complex. As a rule of thumb, short-distance moves of less than fifty miles are not terribly disruptive for children, so judges are prone to approve them. Long-distance moves are much different, especially if the children are prospering and they have good relationships with their non-residential parents.
Approving a modification is usually a two-step process. First, the asking party must establish that the proposed modification is in the best interests of the children. Then, the details of this plan must be in the best interests of the children as well.
Most move-away and other modifications are agreed on motions. Judges typically approve such applications without requiring hearings. The agreement process sometimes involves some compromise. For example, a father might sign off on a mother’s relocation if she agrees to let the children have unlimited FaceTime and another electronic contact with the father.
Incidentally, it’s important to always obtain judicial approval. Informal side-agreements are unenforceable in Illinois family courts, even if they are in writing. So, if one parent unilaterally decides to make changes later, the other parent has no recourse.
Ancillary Matters
We mentioned child support above. In most cases, a mathematical formula determines the number of payments. This formula takes various things into account, such as the number of children, the proportional income of the parents, and the parenting time division. Since these things change frequently, periodic child support reviews are usually a good idea.
Judges may deviate from the guidelines in certain situations. These situations include the age of the children and extraordinary educational, medical, or other needs.
As for the duration of payments. Illinois is one of the few states which extends child support beyond age 18. These orders often include provisions for sharing college costs. Several additional factors apply, such as:
Grandparents’ rights come up occasionally as well. In the most common scenario, if their parents break up, adult children “blame” one of them for the divorce and cut off contact between the targeted parent and their grandchildren.
In such scenarios, the first prong for grandparent visitation, unreasonable denial of visitation rights, is usually present. The grandparents must still prove that visitation is in the best interests of the children. Frequently, judges look to the prior grandparent-grandchild relationship. If the grandparents were essentially babysitters, visitation is unlikely. But if the relationship was closer, e.g. Grandma helped Junior with his homework, the grandparents’ case strengthens.
Count on a Hard-Working DuPage County Child Custody Lawyer
Illinois’ co-parenting law is often complex. For a free consultation with an experienced child custody lawyer in Bolingbrook, contact Keller Legal Services here or call 630-505-1515. We routinely handle matters throughout Chicagoland.
