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The Law Offices of Brian A. Grady, P.C.
Attorney At Law

Itasca Bank & Trust Building
Second Floor
9 East Irving Park Road
Roselle, IL. 60172
Phone:(630) 351 - 4466
Fax: (630) 894 - 2528
E-Mail: bgrady@illinois-custody.com

 

 

“Allocation of Parental Responsibilities”: Overhaul of the Illinois Marriage and Dissolution of Marriage Act

 

Since January 1, 2016, amendments to the Illinois Marriage and Dissolution of Marriage Act have completely redefined notions of child custody and visitation which have existed for decades. Before the amendments, child custody was allocated either jointly or solely, and, if solely, the other parent would possibly have visitation rights. The old law additionally distinguished between legal custody, which gives parents the right to make decisions regarding the child, and physical custody, which refers to the decision of where the child would live. Now, with these new amendments, the legislature has replaced the term legal custody with allocation of parental “decision-making responsibilities,” and replaced the concepts of physical custody and visitation with “parenting time.”

750 ILCS 6/502.5- Decision-Making Responsibilities

The court breaks down parental responsibilities into 4 categories: Education, Healthcare, Religion, and Extra-curricular activities. These responsibilities are then allocated to either both parents to make decisions, or if an agreement cannot be made, the court may allocate one of the responsibilities solely to one parent. Simply put, a parent may be entitled to make decisions in all four areas of the child’s life, or the court may determine that each parent is responsible for different areas. When considering how responsibilities will be allocated, the court will look to see what is in the best interest of the child, and to 15 additional factors specifically mentioned in the amended statute:

1)The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;

2) The child’s adjustment to his/her home, school, and community;

3 The mental and physical health of all individuals involved;

4) The ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

5) The level of each parent’s participation in past significant decision-making with respect to child;

6) Any prior agreement or course of conduct between the parents relating to decision-making with respect to child;

7) The wishes of the parents;

8) The child’s needs;

9) The distance between the parents; residences, the cost and difficulty of transporting the child, each parent’s and child’s daily schedules and the ability of the parents to cooperate arrangement;

10) Whether a restriction on decision-making is appropriate;

11) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

12) The physical violence or threat of violence by the child’s parent against the child;

13) The occurrence of abuse against the child or other member of household;

14) Whether one parent is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and

15) Any other factor that the court expressly finds to be relevant.

 

750 ILCS 6/502.7- Parenting Time

 

As previously noted, parenting time replaces the notions of physical custody and visitation, and addresses the allocation of time between the parents. The statute presumes that both parents are fit and proper to have parenting time. However, if a parent wishes to restrict the other parent’s parenting time, the burden is on them to prove that time with the other parent seriously endangers the child. Unless the parents can tender an agreement approved by the court, the court is permitted to allocate parenting time based on the best interests of the child and 17 additional factors set forth in the amended statute, which are similar to the decision-making responsibilities factors:

 

1) The wishes of the parents seeking parenting time;

2) The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences to parenting time;

3) The amount of time each parent spent performing care taking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’ birth;

4) Any prior agreement or course of conduct between the parents relating to care taking functions with respect to the child;

5) The interaction and interrelationship of the child with his/her parents and siblings, and with any other person who may significantly affect the child’s best interest;

6) The child’s adjustment to his/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 child’s daily schedules and the ability of the parents to cooperate arrangement;

10) Whether a restriction on parenting time is appropriate;

11) The physical violence or threat thereof to the child or other member of the home;

12) The willingness and ability of each parent to place the needs of the child ahead of his/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 parent is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated;

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. When allocating parenting time, the court is not to consider conduct that does not affect the parent’s relationship with the child. But, the court may restrict parenting time if it finds that a parent’s exercise of time would seriously endanger the child’s physical, mental, moral, or emotional health.

 

Conclusion

The legislature intended to make these changes in order to lessen the notion of “winners” and “losers” when dealing with the custody of children. The traditional adversarial legal system is not suited for delicate family law issues. Allowing parents to fight just like litigants in other areas of law is harmful to the entire family dynamic. The amendments intend to make the divorce less traumatic for the children because it can be a very serious and life-altering experience.

 

 

 

 

 

 

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