Allocation of Parenting Time
When couples who have children are no longer together, “residential custody,” or majority parenting time, of the children often becomes the focal point of the divorce or separation. At Kollias & Giese, P.C., we believe that the needs of the parties’ children are of paramount importance. However, because of the cost and stress associated with a contentious custody / parenting time dispute, parents must be well informed about the legal process in order to determine the best approach to their case.
Prior to January 1, 2016, the “residential custodian” or “primary residential parent” was typically the parent with whom the children spent more nights with than the other, and whose address is used for school and legal purposes. Depending on the circumstances of the case, the “non-custodial parent” was generally awarded “visitation” with the children. However, as of January 1, 2016, these distinctions no longer exist. In fact, the courts no longer label either parent as having “custody” or “visitation” at all. Now, the courts determine a schedule for parenting time, and allocate how decisions for a child will be made among the parents. Those major decisions include decisions regarding healthcare, education, activities, and religious upbringing.
Under the new family law statute, all parties through their attorneys must file with the court a proposed parenting plan within 120 days of service or filing a petition if no allocation judgment has been entered.
Regardless of their personal differences, most couples are able to cooperate and agree on a “custody” or parenting plan when it comes to their child or children. In cases in which the parents are not able to agree to the terms of “custody,” or allocation of parenting time and responsibilities, a judge will decide the arrangement. Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act (incorporated by the Illinois Parentage Act) requires the court to consider the best interests of the child and determine parenting time in accordance with all relevant factors, including the following:
- The wishes of each parent seeking parenting time;
- The wishes of the child as to parenting time;
- The amount of time each parent spent caring for the child in the last 24 months;
- Any prior agreements, whether formal or evidenced by the parents’ course of conduct;
- The child’s interaction and interrelationship with the parent(s), siblings, and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school and community;
- The mental and physical health of all individuals involved;
- The needs of the child;
- The distance between the parents’ homes, the parents’ daily schedules, the child’s daily schedule, factors relating to the cost and / or difficulty transporting the child from one home to the other, and the ability of the parents to cooperate in the arrangement;
- Whether it would be appropriate to impose any restrictions on parenting time;
- Any physical violence of threat of physical violence by the child’s parent, whether directed against the child or another person;
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- Any incidents of abuse against the child or another member of the household;
- Whether either of the parents is a sex offender; and
- The military status of the parents
It is a common misconception that once a child reaches a certain age, he or she will have the ability to choose which parent they will reside with, or dictate the terms of their parenting time. That simply isn’t the case under Illinois law. The child’s wishes are always considered, and the age of the child does make a difference. However, courts will generally place far more emphasis on the child’s maturity level and the reasons for the child’s preference as to “custody” / parenting time.
In Illinois, most courts require that parents involved in a parenting dispute participate in mediation, unless there is a legal basis for the parties to opt out of the process. Successful mediation in a parenting dispute can potentially save parents an enormous amount of time, money, and aggravation. Because reaching an agreement in mediation requires the parents to have the ability to speak openly to one another and to the mediator, the terms discussed in mediation are generally not admissible in court. If mediation results in a parenting agreement, the agreement will not be binding until it has been written into a court order and signed by the judge.
In short, mediation can be incredibly useful as a way for parents to avoid protracted “custody” litigation. Even in circumstances where all of the parenting time issues cannot be completely resolved after mediation, it is often the case that mediation results in partial agreements on certain topics regarding the children, such as a time schedule for who has the children on holidays or during breaks from school. At Kollias & Giese, P.C., we believe that it is important for our clients to be informed as to how the mediation process works so that they can get the most out of the session.
If mediation does not result in a full agreement on one or more of the disputed parenting issues, the judge may determine that he or she needs more information regarding the best interests of the child before setting the case for trial. In order to bring that information to light, the court may appoint a third lawyer to the case. The court can designate that the lawyer serve as attorney for the child, a guardian ad litem for the child, or as the child’s representative. While each of these roles is different, all of them can have a significant impact on your case. At Kollias & Giese, P.C., we believe it is essential that we discuss their role with our clients and advise them so that they are fully prepared for the process that lies ahead.
In addition or in lieu of appointing a third lawyer to the case, the court may appoint an evaluator. An evaluator is typically a psychologist who conducts psychological testing, interviews the parents, children, and witnesses, and considers collateral sources of information. The evaluator then submits a written report to the court stating his or her opinion as to which “custodial” / parental allocation arrangement would be in the best interests of the children. The importance of being well-prepared for the evaluation process cannot be overstated.
At Kollias & Giese, our attorneys draw upon a wealth of experience in contested cases involving child-related issues to advise our clients how to best approach the legal process from start to finish. If parenting time is at issue in your case, we would welcome the opportunity to assess your case and advise you how to achieve the best possible outcome for your children.