Allocation of Parental Responsibilities, formerly known as child custody in Illinois, refers to the care, maintenance, and control of a minor child. WARD FAMILY LAW, LLC, has represented many clients through custody cases and witnessed, first-hand, the impact of custodial conflict and works closely with clients to achieve the best results under the law. The law now requires that the court make determinations regarding “Parental Responsibility” rather than “Child Custody.” The law defines parental responsibility as including two factors: decision-making responsibilities and parenting time. We fully understand the importance that your child or children have in your life and we make it a priority for our clients to achieve the results that they believe are in the child’s best interest, for allocation of decision-making and parenting time.
Prior to Senate Bill 57, which went into effect on January 1, 2016, the Illinois Marriage and Dissolution of Marriage Act allowed for custody to be allocated either solely or jointly (formerly entered into as Custody Judgments and Parenting Agreements). When a parent received sole custody, the other parent was entitled to child visitation, or set time to spend with his or her children. In addition, the law distinguished between legal custody, which gives the parent the right to make decisions regarding the child, and physical custody, which refers to where the child lives. In order to make a custody determination, courts took into account the best interests of the child by considering established, relevant factors.
According to Senate Bill 57, rather than making custody determinations, the court will be making determinations regarding parental responsibility. The law defines parental responsibility as including two factors: decision-making responsibilities and parenting time. The concept of “decision-making responsibilities” replaces the concept of legal custody and allocates the right to make decisions in four different areas to the parents. A parent may be entitled to make decisions in all four areas of the child’s life, or the court may determine that each parent is responsible for different areas. The statute requires parental responsibility to be allocated regarding decisions about the child’s education, health, religion, and extra-curricular activities.
As previously mentioned, the law defines parental responsibility as including two factors: decision-making responsibilities and parenting time.
The Determination of Decision-Making Responsibilities is to be based on the Best Interests of the Child and the court is required to consider relevant factors, including those outlined by the statute, as follows:
In order to make a determination with regard to Parenting Time, the court is tasked with considering the Child’s Best Interests; however, the list of factors for the Court to consider is slightly different:
(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.
If the parents’ reach an agreement on a parenting plan, then it must be in writing and signed by both parents. The parents must submit the parenting plan to the court for approval within 120 days after service of a petition for allocation of parental responsibilities or the filing of an appearance, except for good cause shown. Notwithstanding the provisions above, the parents may agree upon and submit a parenting plan at any time after the commencement of a proceeding until prior to the entry of a judgment of dissolution of marriage. The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is unconscionable. If the court does not approve the parenting plan, the court shall make express findings of the reason or reasons for its refusal to approve the plan. The court, on its own motion, may conduct an evidentiary hearing to determine whether the parenting plan is in the child’s best interests.
If the parents cannot reach an agreement on a parenting plan and fail to submit an agreed parenting plan, each parent must file and submit a written, signed parenting plan to the court within 120 days after the filing of an appearance, except for good cause shown.
(1) an allocation of significant decision-making responsibilities;
(2) provisions for the child’s living arrangements and for each parent’s parenting time, including either: (A) a schedule that designates in which parent’s home the minor child will reside on given days; or (B) a formula or method for determining such a schedule in sufficient detail to be enforced in a subsequent proceeding;
(3) a mediation provision addressing any proposed reallocation of parenting time or regarding the terms of allocation of parental responsibilities, except that this provision is not required if one parent is allocated all significant decision-making responsibilities;
(4) each parent’s right of access to medical, dental, and psychological records (subject to the Mental Health and Developmental Disabilities Confidentiality Act), child care records, and school and extracurricular records, reports, and schedules, unless expressly denied by a court order or denied under subsection (g) of Section 602.5 of the IMDMA;
(5) a designation of the parent who will be denominated as the parent with the majority of parenting time;
(6) the child’s residential address for school enrollment purposes only;
(7) each parent’s residence address and phone number, and each parent’s place of employment and employment address and phone number;
(8) a requirement that a parent changing his or her residence provide at least 60 days prior written notice of the change to any other parent under the parenting plan or allocation judgment, unless such notice is impracticable or unless otherwise ordered by the court. If such notice is impracticable, written notice shall be given at the earliest date practicable. At a minimum, the notice shall set forth the following:
(9) provisions requiring each parent to notify the other of emergencies, health care, travel plans, or other significant child-related issues;
(10) transportation arrangements between the parents;
(11) provisions for communications, including electronic communications, with the child during the other parent’s parenting time; (12) provisions for resolving issues arising from a parent’s future relocation, if applicable;
(13) provisions for future modifications of the parenting plan, if specified events occur;
(14) provisions for the exercise of the right of first refusal, if so desired, that are consistent with the best interests of the minor child; provisions in the plan for the exercise of the right of first refusal must include: (i) the length and kind of child-care requirements invoking the right of first refusal; (ii) notification to the other parent and for his or her response; (iii) transportation requirements; and (iv) any other provision related to the exercise of the right of first refusal necessary to protect and promote the best interests of the minor child; and
(15) any other provision that addresses the child’s best interests or that will otherwise facilitate cooperation between the parents.
The court shall conduct a trial or hearing to determine a plan which maximizes the child’s relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. The court shall take the parenting plans into consideration when determining parenting time and responsibilities at trial or hearing.
The court may consider, consistent with the best interests of the child, whether to award to one or both of the parties the right of first refusal. The “right of first refusal” means that if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children. The parties may agree to a right of first refusal that is consistent with the best interests of the minor child or children. If there is no agreement and the court determines that a right of first refusal is in the best interests of the minor child or children, the court shall consider and make provisions in its order for: (1) the length and kind of child-care requirements invoking the right of first refusal; (2) notification to the other parent and for his or her response; (3) transportation requirements; and (4) any other action necessary…
The filing of the parenting plan may be excused by the court if: (1) the parties have commenced mediation for the purpose of formulating a parenting plan; or (2) the parents have agreed in writing to extend the time for filing a proposed plan and the court has approved such an extension; or (3) the court orders otherwise for good cause shown.
The court can require the parties to attend mediation with a mediator, who is a neutral third party who tries to help the parties reach an agreement. The mediation process is used to assess each parties’ position in terms of their minor child(ren). If an agreement still cannot be reached, then the Court can appoint certain professionals to aid in the final determination.
Representation of a child may be necessary in proceedings involving the Allocation of Parental Responsibilities and the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates:
A child representative is an attorney for the parties’ child(ren). The child representative advocates for what he or she determines to be in the best interests of the child(ren) after investigating and reviewing the facts and circumstances of the case. The child representative is required to meet with the child(ren) and the parties, investigate the facts of the case and encourage settlement and the use of alternative forms of dispute resolution. Unlike a guardian ad litem, the child representative cannot be called as a witness to testify.
A guardian ad litem (also known as a “GAL”) is an attorney for the parties’ child(ren). The guardian ad litem is required to investigate the facts of the case, interview the child(ren) and the parties, and testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. Unlike a child representative, the guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.
An attorney for the child is an attorney who represents the parties’ child(ren). The attorney for the child provides independent legal counsel for the child(ren) and owes the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client. In any proceeding involving the allocation of parental responsibilities, parentage, support, relocation, property interest, abuse, or general welfare of a minor or dependent child, the court may appoint an attorney to represent the parties’ child(ren). The court may do so on its own motion or by the motion of a party.
In deciding whether to make an appointment of an attorney for the minor child, a guardian ad litem, or a child representative, the court shall consider the nature and adequacy of the evidence to be presented by the parties and the availability of other methods of obtaining information, including social service organizations and evaluations by mental health professions, as well as resources for payment. Contact us today to set up a consultation and discuss your child custody concerns with an experienced attorney at WARD FAMILY LAW, LLC.
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