Parenting Time

For years, Illinois statutes referred to decision making for the children of separated parents as “custody” and the time spent with the children by the non-primary parent as “visitation”. As of January 1, 2016, the Illinois state legislature changed all the terminology presumably so that parents would no longer feel unequal with emotionally charged terms like “custody” and “visitation”.

Now the courts require any parents in a domestic relations action to propose a parenting plan within 120 days. That parenting plan is to outline the 1) parental responsibilities of each party and 2) parenting time of each party.

The parenting plan must propose an allocation of parental responsibilities. Specifically, areas of the child’s life where each particular parent or both, if agreed, will make decisions for the child.

The four required “significant issues” to be included are:

Education, including the choice of schools and tutors. 750 ILCS 5/602.5(b)(1)
Health, including all decisions relating to the medical, dental, and psychological needs of the child. 750 ILCS 5/602.5(b)(2)
Religion. 750 ILCS 5/602.5(b)(3)
Extracurricular Activities. 750 ILCS 5/602.5(b)(4)

Of course, immediate decisions will always remain the purview of the parent when who is with the child at the time. “A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during the parent’s parenting time.” 750 ILCS 5/602.5(d)

After the parties exchange their proposed parenting plans, it is presumed and hoped that the parties will negotiate amongst themselves and come to an agreement. That agreement is called an “allocation judgment” and will then be presented to the judge for approval and then entered.

After the allocation judgment is entered there can be no changes for the next two years unless there has been a “substantial change of circumstances.”

If the parties cannot come to an agreement after exchanging parenting plans, mediation will be mandatory.

After mediation, the court will make a determination of the parental responsibilities and parenting time. In determining the parenting responsibilities, the court will make decisions based on “the best interests of the child.” In making that decision, the court will consider the following factors:
(1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;
(2) the child’s adjustment to his or her home, school, and community;
(3) the mental and physical health of all individuals involved;
(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
(5) the level of each parent’s participation in past significant decision-making with respect to the child;
(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
(7) the wishes of the parents;
(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 decision-making is appropriate under Section 603.10;
(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(12) the physical violence or threat of physical violence by the child’s parent directed against the child;
(13) the occurrence of abuse against the child or other member of the child’s household;
(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
(15) any other factor that the court expressly finds to be relevant.

This long and broad list allows the court to make a decision for almost any reason, that’s why it’s so important that your lawyer remind the court that the statute specifically says there are things the court cannot consider: “In allocating significant decision-making responsibilities, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 720 ILCS 5/602.5(e). This part of the statute defends the parent against the common but pointless “he said/she said” accusations that come up but have no legitimate effect on parenting like marijuana use, new girlfriends or boyfriends, frequency of diaper rashes, etc.

Allocation of parenting time gets a different analysis than allocation of parenting responsibilities because an irresponsible parent may be awarded no parental responsibilities but will still likely be awarded parenting time. Again, the court uses a “best interests of the child” standard and the following factors:
(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.

Again, immediately proceeding this list is a statutory admonition of what NOT to consider, “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). You could argue that if the list goes so far as to specifically considers whether the parent is a sex offender, than anything else not listed must not affect the parent’s relationship with the child. Of course, the counter-argument is # 17 “any other factor that the court expressly finds to be relevant.” The word expressly requires the court to provide a specific reason to limit parenting time. It cannot be based on a hunch.

The court cannot make these determinations independently. The court must conduct a hearing or trial with all the evidence and evidentiary rules that typically apply in any other hearing or trial.

“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.” 750 ILCS 5/602.10(g)

Before these final determinations are made by the court, the court may make temporary allocations of parental responsibilities and parenting time after hearing. Of course, a hearing for temporary allocation will be briefer than a final trial and it is also completely reversible.

In fact, no allocation judgment is truly final. “The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child’s best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities; or (ii) conduct of which the court was previously unaware that seriously endangers the child.” 750 ILCS 5/603.10(b).

Even if parenting time is allocated specifically by court order there will still be exceptions. The parties can come to mutual agreements outside of court or the parties can exercise their right of first refusal to see the children if the other parent is not with the children.