Parental Responsibility Basics

by Wes Cowell; updated 25 June 2016 -- suggest a correction

 

A new divorce law (effective 1/1/2016) eliminated the word "custody" in favor of "decision-making."  A rose by any other name . . . .  The new law also changed "visitation" to "parenting time."  Illinois law now requires parents to present a parenting plan.  If they can't agree, a judge will determine the extent of their respective future parental responsibilities.  Need advice?  Callleave your info, or schedule a consult.

 

Parental Responsibility -- Decision-Making and Parenting Time:  "Parental Responsibility" boils down to two areas:  decision-making and parenting time.  That's it.  That's all there is.  Each parent owes a duty of support to the child (child support) . . . but that's a different matter.  The decision-making boundaries and parenting schedule are defined by the parents in the "Parenting Plan" or, if they cannot agree, the judge lays down the law in the "Allocation Judgment."  IF the judge has to do it, there's nothing in the law that requires that each parent be allocated any decision-making responsibilities.  750 ILCS 5.602.5(a).

 

Significant Decision-Making -- Only Four Issues (Plus One):  The decision-making part of the Parenting Plan (or Allocation Judgment) covers only four "significant issues" of decision-making.  They are:

  1. Education, including the choice of schools and tutors.  750 ILCS 5/602.5(b)(1).

  2. Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.  750 ILCS 5/602.5(b)(2).

  3. Religion.  750 ILCS 5/602.5(b)(3).  If the parents can't agree and the judge is forced to rule on this point, the law has baked into it three big loopholes the judge may use to avoid the messiness of having a judge impose religious upbringing standards on fueding parents.  The loopholes are:

    1. Follow an express or implied agreement between the parents.

    2. Follow "demonstrated past conduct" in the absence of an express or implied agreement.

    3. Do nothing if there is neither 1 nor 2, above.

  4. Extra-curricular Activities.  750 ILCS 5/602.5(b)(4)

  5. On-Line Activities.  This one isn't in the law -- it's my own creation -- but I think all parents and judges should give it some thought when working out a Parenting Plan or Allocation Judgment.  I maintain that a child's online activities should be considered as a fifth "significant issue."  The child's Parents have to work out what their kid can and cannot do online.  At what age may a child have a smart-phone?  Who pays?  With whom may a child text?  What about a Facebook account?  How should parents determine who may be the child's Facebook friends?  Twitter?  May a child use online devices in private?  Parents need to coordinate on these points -- if the child can access the internet privately while at one parent's home but not the other, all parenting is undermined.

 

Parenting Time:  Regardless of how the significant decision-making responsibilties are allocated, parenting time the parents must produce a parenting schedule in their Parenting Plan.  If they cannot agree, the judge must define a parenting schedule "according to the child's best interests."  750 ILCS 5/602.7(a).  See my arcitle on The Parenting Schedule.

 

Old Law / New Law:  Illinois' former "cusotdy" law did not prevent a judge from allocating decision-making between parents . . . but it never happened.  All parental decision-making was assigned either solely to one parent (sole custody) or jointly to both parents ("joint custody").  The new law allows individual decision-making tasks to be allocated to Mom, Dad, or both parents.  For example, Mom might be in charge of education, Dad might be in charge of extra-curriculars, and they both might be responsible for health care.

 

You Don't Have to Get Divorced:  The new law allows parents to go to court to allocate parental decision-making without filing for divorce.  That's right:  if you're having fights about rearing the kids but want to stay married, you may file a case to alloacte paraental decision-making power and never mention the word "divorce."

 

120-Day Filing Deadline for Parenting Plan:  Illinois' new law requires parties to submit to the court a proposed "Parenting Plan."  If the parties can agree, they submit a single parenting plan.  If they cannot agree, they must submit separate plans.   

 

Temporary Allocation Awards:  When a couple can't get along while their divorce case is going through the court system, and it's so bad that they can't even bring themselves to cooperate on decisions regarding the children, the court has the power to allocate decision-making power between the parents (or to one parent, only).

 

Appealing Temporary Allocation Awards:  Temporary court orders are not appealable unless they are injunctive in nature; that is unless they prohibit or command a particular action.  Nearly all temporary custody orders include restrictions.  The most common are that the parents not harm the children, not speak negatively about each other in the children's presence, and not talk about the divorce case with the children or coach the children about what to say to the judge or the GAL.   Historically, the appellate court has refused to hear appeals on temporary custody awards . . . even if the order included an injunctive restriction.

 

What gives?  If you can appeal temporary injunctions, why can't you appeal temporary injunctions about custody?  

 

This issue ALMOST went up to the Illinois Supreme Court in IRMO Eckersall, 2014 IL App (1st) 132223 (Ill. App., 2014)  Catherine and Raymond Eckersall were divorcing in 2013 and didn't see eye-to-eye on very much.  A temporary custody order was entered without an evidentiary hearing.  It contained 11 restrictions (very run-of-the-mill stuff:  don't beat the kids, don't speak negatively about each other, don't coach the kids about custody, no drinking or drugging when the kids are around, no overnight guests, etc.).  Catherine appealed under Rule 307 (Interlocutory Appeals as of Right) as she thought the injunctive language violated her rights to parent her children as she saw fit.  The appellate court dismissed the appeal for lack of jurisdiction, saying that although the temporary order looked like an injunction, sounded like an injunction, and felt like an injunction . . . it wasn't an injunction.  Catherine took her appeal to the Supremes and they granted cert.  Before they could dispose of the matter, however, Catherine and Raymond finally saw eye-to-eye:  they resolved their differences and settled their case.  For the Supremes, that mooted the issue and they dismissed the appeal.

 

For what it's worth, my two cents on this issue is that the Appellate court had it right: 

 

Not every non-final order of a court is appealable, even if it compels a party to do or not do a particular thing.  For example, court orders that are ministerial or administrative cannot be the subject of an interlocutory appeal under the rule allowing appeal from interlocutory order granting an injunction. The character of an order must be determined in the context of the facts and relief sought in each case.

 

 

Despite its label, the order's effect and aim is to place terms and conditions on the parties' visitation rights. The order regulates an aspect of the pretrial proceeding, namely, the parties' custody and visitation. The order does not purport to adjudicate any substantive issues, but, rather, precludes the parents from engaging in specified conduct that could be detrimental to the welfare of the children. Evidence of this intent appears in the record of proceedings.

In Re:  Marriage of Eckersall, 2014 IL App (1st) 132223 (Ill. App., 2014).

 

Custody Mediation:  All parents in Illinois' family courts -- whether divorcing or never married -- are required by court rules to try to mediate conflicts involving custody, removal, and visitation.  If your case is sent to a court-appointed mediator, be sure to work closely with a lawyer to prepare a strategy and to carefully consider your objectives and options.  Depending on the county in which your case is filed, the mediator may make recommendations to the judge.  In many cases, comments made and evidence disclosed in mediation may not be confidential and the mediator may reveal to the judge and your spouse information that you thought was going to be held in confidence.  Always consult local court rules (another reason to work with a lawyer.  In Cook County, for example, information revealed in most mediation sessions is considered confidential and will not be revealed in court.  In “Emergency Intervention” sessions, however, the mediator may disclose all information and nothing is considered confidential.  Work with an attorney familiar with the judges and mediators.  You very well may be able to resolve all matters of custody and visitation in mediation.

 

Good Agreements, Bad Agreements:  I work every day with divorced (or never married) parents who signed off on some custody agreement that they thought was “good” but soon came to regret.  Most made the mistake of trying to work out their agreement without the benefit of a lawyer.  Once they realize the mistakes they made, they have to hire me to clean up the mess.  It’s always easier -- and cheaper -- to do things right the first time.  If you’re thinking of working out your own custody agreement, do yourself a favor and work with an attorney.  Even if you just hire a  lawyer for "out of court legal services" or "outside coaching" it will be well worth it.

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