Children's Issues: Decision-Making/Parenting Time

CHILDREN’S ISSUES: DECISION-MAKING/PARENTING TIME

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Many people ask: who gets custody of the children in a divorce and how is visitation decided? You may be surprised to know that the terms “custody” and “visitation” are no longer used in Illinois. As of January 1, 2016, what was traditionally referred to as custody is now divided into two areas: (1) Allocation of Major Decision-Making Responsibilities and (2) Parenting Time.

Decision-Making

The Allocation of Major Decision-Making Responsibilities covers major decisions regarding four areas of a child’s development:

Education (what school the children will attend);
Religion (what religious training, if any, the children will receive);
Healthcare (choice of pediatrician, medications, treatments); and
Extracurricular activities (whether they enroll in ballet or soccer).

These responsibilities can be shared equally between the parents, which is called joint decision-making, or they can be allocated to only one parent, referred to as sole decision-making. According to the public policy of Illinois, joint decision-making is preferred unless the parents are incapable of making decisions together. You may have a situation where both parents agree on all issues except education. The parties could agree, or a judge could order, joint decision-making for religion, healthcare, and extracurricular activities, but allocate to one parent the decisions regarding education. The bottom line is that the Allocation of Decision-Making is very important, especially if the children have significant health or educational issues as these decisions can be formative in the children’s development.

Resolution of Issues

Judges are in favor of parents coming to their own agreement as to decision-making and parenting time. If the parties can come to an agreement, the terms are reduced to an Allocation Judgment and entered by the Court. This is the document that will govern all parenting decisions, including decision-making, parenting time, dispute resolution, holiday parenting time and other details. One thing it will not address is child support or the payment of child-related expenses. Financial issues are resolved in another agreement.

If the parents cannot come to an agreement, a mediator can be used to help resolve the parties’ differences. If that fails, the Court will often appoint an advocate for the children. There are three kinds of child advocates a Judge can appoint are a Guardian Ad Litem, A Child Representative, and an Attorney for the Child. https://www.cookcountycourt.org/ABOUT-THE-COURT/County-Department/Domestic-Relations-Division/Child-Rep-Guardian-Ad-Litem-GAL These advocates have different responsibilities and rules, which I can explain in greater detail if there is a need. In addition to appointing a child advocate, a Court can order a custody evaluation to be performed by a psychiatrist and/or psychologist. That involves numerous interviews with parents, the children, teachers, and therapists. Again, there are varying types of custody evaluations, and our lawyers can help guide you through the process.

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The most important thing about parenting issues in a divorce situation is the best interests of the children. The Court will use a best interest standard to determine what is best for the children before making any decisions or approving any agreement. To determine what is in the best interests of the child, Illinois law considers a multitude of factors, including:

The wishes of the parents;

The wishes of the child taking into consideration the child’s maturity and ability to express their independent preferences;

The amount of time each parent has been performing caretaking duties for the two years preceding the filing for divorce;

Any prior agreement or conduct between the parties as it relates to caretaking functions;

The relationship the children have with his/her parents, siblings and other people that play a major role in the children’s life;

Adjustments to home, school and community;

The mental and physical health of all involved;

The distance between the parents’ residences;

The child’s needs;

Occurrences of or threats of abuse or violence;

The willingness of the parent to facilitate a relationship between the child and the other parent;

Any restrictions of parenting time due to abuse, violence or one of the parents is a convicted sec offender; and

Any other factor that the Court finds to be relevant.

How My Firm Approaches Children’s Issues

In any divorce that involves children, I focus first on the children’s issues before concentrating on financial issues. We interview you in detail about your children and their relationships with both parents. We discuss your view on your children’s best interests and how you envision their lives going forward. As soon as possible, we draft a proposed parenting judgment to try to reach an agreement, so the children are not dragged into a protracted battle.

If there are disagreements, we bring in an experienced mediator. I work with many qualified professionals who have great success in moving even difficult parties towards resolution. I am a certified mediator and collaborative lawyer, so I am very well-versed in how to advocate in a mediation as that process requires different skills than litigation and in-court advocacy. If mediation is not successful, we can ask the judge to weigh in informally on the outstanding issues to try to avoid the cost and stress of a trial.

It is always best to resolve children’s issues by agreement because you don’t want judges and outside advocates who do not know your children and family to step in and take away your right to make decisions. But, in high conflict situations, it may be necessary to litigate the matters. If so, I have extensive experience trying parenting cases and will be prepared to fight aggressively for your family.