DECISION MAKING AND
In Illinois what used to be formerly known as "Custody" is now called "Decision Making" and "Visitation" is now called "Parenting Time."
If you have children and are facing divorce, separation, or the need to define the roles of each parent in a child’s life, then the Court will use what is called a “best interests standard.”
The best interests test is the standard the court will use to finalize decisions on child custody and parental responsibilities, which include parenting time and decision making responsibility.
The final decisions will then be written into a Parenting Plan that is approved by an order of the family law court and binding on both of the parents.
Even where the parties agree about child custody and parenting time, and parental decision-making, the court has an independent duty to make sure that the agreements reached by the parents are in the best interests of the children.
Determining Parenting Time and Custody Using Best Interests Test
Determinations of parenting time, which include visitation and custody, are made by the court after looking at the child’s best interests and hearing any evidence that parenting time may endanger a child’s physical or mental welfare.
In order to make a decision in regards to a child’s best interests the court will look at several statutory factors which include the following:
child’s wishes, if they are mature enough to express reasoned and independent preferences,
mental and physical health of parties,
The ability of a party to put the child’s needs ahead of their own,
encouragement of love and contact between the child and the other party,
history of domestic violence (if any),
past involvement with the child, and
physical location of the parties.
If the issue of endangerment is raised, the Court may hear the issue on an emergency or expedited basis. The Court will review any facts related to endangerment and then may restrict the parenting time of a party, or otherwise safeguard the child against such issues as child abuse, neglect, and domestic violence.
Balancing and determining the child’s best interests can be difficult in situations where a parent believes there is endangerment. There must be clear evidence to present to the court that endangerment exists, such as a police report evidencing domestic violence. In many cases this kind of evidence does not exist and your attorney may need to help you express your concerns as best as possible in order to protect the interests of your child.
The Wishes of the Child
The wishes of the child is often one of the most misunderstood factors relating to the determination of parenting time and parental decision-making. Contrary to popular belief, children may only make the final determination of parenting time when they have reached adulthood (age 18). There is no earlier age in Illinois where children are permitted to make their own decisions about parenting time, unless they have been emancipated. Until age 18, the child’s wishes are merely a factor for the Court to consider. Moreover, courts are often very hesitant to interview children as to their wishes, even when the children are nearly 18 years old. Instead, the court will typically look at the physical manifestations of the child’s wishes, or simply focus on the other factors.
Allocation of Decision-Making Responsibility Using Best Interest Test
Decision-making responsibility is about who should make common, but important decisions, such as what school a child should go to, what extra-curricular activates a child should participate in, determinations as to responsibilities related to raising a child within a certain religion, and what kinds of medical treatment a child should receive. It is important to note that while medical decision-making authority can be allocated between the parties, that authority does not apply to emergency situations. Any party caring for the child has a duty to make sure that the child receives appropriate medical treatment in case of emergency.
The court will allocate decision-making responsibility using the same factors used to determine whether parenting time is in the best interest of the child, including the factors of endangerment. In addition, the court will also look at the parties’ ability to:
cooperate and make joint decisions,
provide a positive and nourishing relationship, and
promote contact between the parties.
The Court will often allocate parental decision-making jointly between the parents. This can be ideal where both parents are able to put the child’s needs ahead of their own and where the parties have some ability to communicate and compromise. The downside of joint decision-making is that when the parties can’t agree, they must either try to resolve the issue through mediation or arbitration, or they may be forced to bring the matter before the Court so that a judge can decide the issue. This can add significant costs and delays to the decision-making process.
Implementing the Parenting Plan
Once the decisions have been made as to the best interests of the child for parenting time and decision-making, then the court can order a Parenting Plan that will outline visitation, custody, and decision-making responsibilities.
The Parenting Plan is the final plan that both parties will be expected to uphold. Every effort should be made by the parents to handle as many issues in the parenting plan as possible, up-front. It is impossible and impractical for a mutually agreed-upon parenting plan or a court-ordered parenting plan to account for every conceivable situation (although a mutually agreed-upon plan can usually do a much better job), but it is important that the plan account for those situation most likely to arise, as well as those most important to the parents. Your attorney will often think of a number of parenting time issues that the parties would not have even considered, simply because an experienced domestic relations attorney has gone through many divorces and child custody disputes.
Modifications to the plan can be relatively easy where the parents are in agreement as to the modification. Where the modification is opposed by one of the parents, the process can be much more difficult and require a parent to show how circumstances have changed to justify the proposed modification. When the parties are not in agreement, only a judge can alter the parenting plan.
Recent Blog Articles Regarding Parenting Time and Decision Making
Illinois Law for Allocation of Parental Responsibilities
and Parenting Time
(a) Best interests. The court shall allocate parenting time according to the child's best interests.
(b) Allocation of parenting time. Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time. It is presumed both parents are fit and the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health.
In determining the child's best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:
(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.
(c) In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent's relationship to the child.
(d) Upon motion, the court may allow a parent who is deployed or who has orders to be deployed as a member of the United States Armed Forces to designate a person known to the child to exercise reasonable substitute visitation on behalf of the deployed parent, if the court determines that substitute visitation is in the best interests of the child. In determining whether substitute visitation is in the best interests of the child, the court shall consider all of the relevant factors listed in subsection (b) of this Section and apply those factors to the person designated as a substitute for the deployed parent for visitation purposes. Visitation orders entered under this subsection are subject to subsections (e) and (f) of Section 602.9 and subsections (c) and (d) of Section 603.10.
(e) If the street address of a parent is not identified pursuant to Section 708 of this Act, the court shall require the parties to identify reasonable alternative arrangements for parenting time by the other parent including, but not limited to, parenting time of the minor child at the residence of another person or at a local public or private facility.
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