Factors Courts Consider when Allocating Parenting Time

by Wes Cowell; updated 26 June 2016 -- suggest a correction.

 

If parents cannot agree on a parenting schedule, the judge has to figute it out.  To do that, the court is to look to sixteen factors spelled out in Illinois' new Parenting Time law (750 ILCS 5/602.7 -- effective 1/1/2016).   Need advice? Call, leave your info, or schedulescheduleschedule a consult.

 

Background:  This is all new.  Up until 2016, courts called on to create a parenting schedule did it based ONLY on "the best interests of the child."  In a typical case a judge would ask each parent what they wanted as an outcome and would try to massage a resolution that did right by the child and left each party about equally unhappy.

 

Today, judges must specifically consider sixteen factors (and anything else that is relevant) in allocating parenting time.  It has been this way in Illinois only since 1 January 2016 -- so you won't find cases in your research that address "parenting factor 7 as defined in 750 ILCS 5/602.7(b)(7)."

 

"Parental Misconduct":  Let's get this out of the way, first: when parenting time issues come up, lawyers hear all the complaints about what a bad person the other parent is.  They run the gamut -- "she drinks until she passes out," "his friends are all under indictment;" "she sleeps until noon," "he cheats at monoploy."  The list is endless. The answer to all of these complaints is "unless it affects the child, the court doesn't care."  Illinois law says:

 

In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent's relationship to the child.

750 ILCS 5/602.7(c)

 

As an aside, these cases -- and the law that says outside conduct doesn't matter -- go back to claims that a parent's homosexuality would harnm the kids.  Couples would divorce and Mom would introduce the kids to her girlfriend or Dad would introduce them to his boyfriend.  Initally, the cases found some traction but, before long, courts rejected the whole notion that what consenting adults did in private and away from the kids could have any bearing on the reacing of the children and the language was included in the visitation law.  The law's application has spread to cover everything:  there are now cases that say doing drugs or prostituting oneself is out-of-bounds for the court to consider so long as the activity doesn't affect the children.  The court can be concerned ONLY with conduct that affects the kids.

 

Drugs and Alcohol:  Let's get this out of the way, second:  no one cares about a parent's little flaws.  The big complaint is "he drinks until he gets drunk in front of the children, or "she does drugs right in front of the kids."  Drugs and alcohol abuse are the big bones of contention in these arguments.  Parents must contend with three drugs- and alcohol-related issues:

  1. Safety:  Everyone is concerned about a parent who gets drunk and then drives with the kdis or drugs to the point of passing out while the three-year old is playing alone by the pool or fiddling with a pack of matches.

  2. Setting an Example:  Everyone agrees that getting sauced in front of the kids shows them a bad example to follow and displays bad parenting. 

  3. Emotion, Mood, Stability, and Predictability:  This is the real rub:  drugs and alcohol alter mood -- and that directly impacts the kids.  The mood-altering powers of these chemicals can last days, too.  So, when a parent drinks on Thursday and sees the kids on Friday, the drinks may still affect that relationship.  Even without the obvious effects of a hangover, a parent is likely to be more tired, irritable, and maybe even agressive the day after a few drinks. 

 

Problem solved:  Any judge will include language in a parenting order that Mom and Dad are not to consume drugs or alcohol while the children are present.  Sometimes a little leniency can be baked in by saying "no alcohol to excess while the children are present."  Everything depends on the circumstances.  

 

The Better Solution:  When possible, the better solution is to have the parents agree that neither will consume drugs or alcohol while the children are present nor in the 24-hours preceding such period.  That will allow the parent time to cleanse mind and body, nourish, hydrate, sleep, exercise . . . and brace themselves for the rigors of parenting.

 

The Sixteen Factors:  Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the judge must allocate parenting time according to the child's best interests."  750 ILCS 5/602.7(a).  In doing so, the judge must consider sixteen factors spelled out in the law.  They are:

 

  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.

 

Ageement:  An agreement is almost ALWAYS better then rolling the dice with the court.  Work with a lawyer.  You'll almost certainly end up with an agreement you find acceptable and, even if an agreement is not in the cards, you'll be prepared for a hearing in which you must marshall facts over 16+ factors.  Call my office.

 

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