These practice area statements are provided by the attorneys from Murphy & Dunn and represent their thoughts on practicing law over the past 36 years in family law. They are not legal advice. They are a general overview of the law, with specific statutes cited for your review, and opinions on how they generally apply in divorce cases in Illinois. Each and every case is different.
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The word “visitation” for a parent no longer exists in the new Illinois Marriage and Dissolution of Marriage Act. Parents are now granted “Parenting Time” with their children.
When this law first changed on January 1, 2016, I thought it was just a little bit of political correctness getting involved in the divorce statute. However, the new law has been anything but that. It has actually changed the way divorce cases are completed in Illinois. Now more than ever, both parents are treated as true parents and have equal rights and responsibilities in caring for their children. The new law has really reinforced the statement “that parents are divorcing each other, but they are not divorcing their children”. I think overall that is a good thing.
The new term is called the “Allocation of Parental Responsibilities: Parenting Time” and it provides that both parents shall have parenting time according to the child’s best interests. The law presumes both parents are fit and the court shall not place any restrictions on parenting time unless it finds that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. Therefore, both parents are presumed to be good parents capable of caring for their children and neither parent has the advantage in determining parenting time to start. However, that still does not mean equal parenting time for each parent and that still does not stop people from having a “custody” fight over who gets primary parenting or old school “custody” of them.
If the parties do not get an agreement, then the court will decide parenting time by force in a court hearing. After practicing family law for the past 30 years, it is my belief that only foolish parents would allow a Judge to decide where their children should live in a “custody” fight. Two good attorneys working together with the help of the Judge should allow both parents to find a middle ground on how to raise their children. That is the best practice. However, if that does not work, then we are here to fight in Court as well. There are no better family law attorneys to handle your case than our teams of trial lawyers and paralegals working together for the best interests of you and your children.
There are numerous factors the Court must consider in determining primary parenting time and parenting time overall. They include: (1) the wishes of each parent seeking parenting time; (2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time; (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 or, if the child is under 2 years of age, since the child’s birth; (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 addition, in allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.
Wow that is a lot to consider. That is why you need experienced family law trial attorneys on your side. I believe your children are the most important thing in your life, or they should be. Don’t leave their care to chance.
One thing to remember, however, is that both parents have the right to have parenting time and parenting decision-making in Illinois. There is no “tenders years” doctrine that states that Mothers have priority over Fathers, or that Fathers cannot have small children overnight or in their primary care. Both parents have the right to have their children with them equally. Just like when a child is born, there is no test for a Mother or Father to take the children home from the hospital. The hospital presumes you will love and properly care for your children. So does the dissolution statute in Illinois.
At Murphy & Dunn, P.C., our lawyers will help you negotiate a Parenting Plan that serves your children’s best interests and also protects your rights as a parent. We want each parent to be able to have a relationship with his or her minor children. Studies have shown that children who have a good relationship with both parents do better in school and are more successful in life. Keep that in mind and try to keep your children out of the divorce process if possible. That is our goal as well.
Restricted or Supervised Parenting Time
Just as some parents seek more than equal parenting time, other parents feel a need to restrict the amount of time the other parent spends with a child. This can be based on excessive alcohol or drug usage, cases of domestic violence, physical or sexual abuse, or other actions taken by a parent that is not in the best interests of the children. In extreme cases, most counties have a child visitation center where parents can drop off and pick up children safely or supervise parenting time. Hopefully, that is not necessary. For more information about restricting parenting time, please see the Restricted Parenting Time practice area.
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