Posted on February 12, 2022

Day-To-Day Decisions Vs. Significant Decisions In An Illinois Custody Battle

After you get divorced, you are still a parent to your child. Part of being a parent requires that you co-parent (to an extent) with the child’s other parent. This is not easy.

Co-parenting really means coordinating a schedule for the child and making decisions for the child.

Coordinating a child’s schedule is easy. It’s on a calendar and there’s pick-ups and drop-offs. Virtually no communication is necessary between the two parents unless someone cannot pick-up or drop-off a child.

Making decisions for a child is difficult; where the child goes to school, what sports the child plays, what doctor the child sees, what church, mosque or temple the child can attend. These are matters for in-depth discussion…with a person you probably don’t like talking with much anymore.

Then there’s all the little decisions; what the child should eat for breakfast, what shirt the child should wear, who the child’s friends are. Are minor day-to-day issues matters for discussion between two former spouses?

How Significant Decisions Are Made For Children After An Illinois Divorce

How two parents make significant decisions is really up to them. What decisions the parents consider to be significant and worth discussing in advance is also up to the parents.

This fuzzy concept regarding who makes what decision used to be called “custody

“[E]ffective January 1, 2016, the terms “allocation of parental responsibilities: decision making” and “allocation of parental responsibilities: parenting time” have replaced the phrase “custody” throughout the Act.” In re Custody of GL, 80 NE 3d 636 – Ill: Appellate Court, 1st Dist., 3rd Div. 2017

The Illinois Marriage And Dissolution of Marriage Act specifies that there are at least four decision-making issues that must be addressed in every Allocation of Parenting Time And Parental Responsibilities.

“Those significant issues shall include, without limitation, the following:(1) Education, including the choice of schools and tutors.(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.(3) Religion…(4) Extracurricular activities.” 750 ILCS 5/602.5(b)

Most parents simply agree to make joint decisions for all significant matters in their child’s life. For joint decision-making, the language in the Allocation of Parenting Time and Parental Responsibilities looks like this:

  1. Significant decisions: The parties agree that [Mom] and [Dad] are both fit and proper people to participate in the care and control of the minor child and believe and agree it is in the best interests of the minor child that they allocate significant decision-making for the minor child as follows:
  • Education: With respect to the choice of school enrollment, special educational services and therapies, through choice of any post-secondary education, and for all other tutoring and educational needs, the parties agree that [Mom] and [Dad] shall have joint decision-making responsibility to make significant decisions regarding education for the minor child. The parties have previously determined that the minor child will attend [Name of School] from fall of 2021 to the spring of 2025, the minor child’s anticipated graduation year from said school.
  • Health: With respect to all decisions relating to the medical, dental, and psychological needs of theminor children and to the treatments arising or resulting from those needs, the parties agree that [Mom] and [Dad] shall have joint decision-making responsibility to make significant decisions with respect to the health for the minor child.
  • Religion: With respect to the minor child’s religious practices and education, the parties agree that [Mom] and [Dad] shall have joint decision-making responsibility to make all significant decisions regarding religion.
  • Extracurricular Activities: With respect to the minor child’s enrollment and participation in extracurricular activities, the parties agree that [Mom] and [Dad] shall have joint decision-making responsibility to make all significant decisions regarding extracurricular and recreational activities.”

A popular alternative to joint decision-making is having the parents agree to consult each other regarding significant decisions in order to arrive at a harmonious policy and if the parties are unable to reach an agreement, one parent will have ultimate decision-making authority.

Joint decision-making can allow the parties to wait for a significant issue to arise and then later turn to the courts to resolve the decision in the future.

If the parents can’t agree on who will make significant decisions for the child, then an Illinois divorce judge will decide which parent will have the final decision-making authority for each area of the child’s life.

“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)

“Courts may consider any relevant factors in determining the best interests of a child when allocating decision making” In re Custody of GL, 80 NE 3d 636 – Ill: Appellate Court, 1st Dist., 3rd Div. 2017

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:(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” 750 ILCS 5/602.5(c)

The reality is that an Illinois divorce judge will never get to the bottom of each and every one of the factors. In a true decision-making dispute, the court appoints a Child Representative or a Guardian Ad Litem to investigate the parents and the child in order to make a summary to the court of the up to 15 items the court is considering.

The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(c)

While the 15 factors must be investigated by a Child Representative or Guardian Ad Litem and considered by the court, there are issues that must NOT be considered.

“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.” 750 ILCS 5/602.5(e)

“Conduct of a parent that does not affect that parent’s relationship to the child” is literally everything that doesn’t involve the parent directly interacting with the child; adultery, drug use, alcoholism, mental Illness, and/or dangerous hobbies.

Do not expect an Illinois divorce judge to divide the decision-making areas equally.

“Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)

Even if a parent is granted no decision-making responsibilities, that parent will still be making plenty of decisions for the child during his or her parenting time.

Day-To-Day Decisions For A Child After An Illinois Divorce

Routine and emergency decisions (what other kinds of decisions are there?) can be made by whichever parent is exercising parenting 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 that parent’s parenting time.” 750 ILCS 5/602.5(d)

If a parent is truly incapable of making quality decisions for a child during their parenting time, that parent probably needs to be supervised when they exercise their parenting time.

“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child. Such orders may include, but are not limited to, orders for…supervision” 750 ILCS 5/603.10(a)(2)

Modifying Decision-Making Responsibilities After An Illinois Divorce

99% of parents decide to make joint decisions regarding their children’s lives. Often, they find that joint decision-making was wishful thinking and that decisions must be made unilaterally in the future.

In most counties in Illinois, parties must proceed to mediation after filing a motion to modify an allocation of parenting time and parental responsibilities.

“For the following categories of contested issues, mediation is mandatory unless an impediment to mediation exists:…modification of allocation of parental responsibilities” Cook County Court Rule 13.4(e)(ii)(b)

Furthermore, the allocation of parenting time and parental responsibilities should include a mediation clause anticipating this disagreement. My firm’s mediation clause reads as follows:

“While the parties acknowledge and understand their rights to submit any such disputes or alleged breaches of the terms of this Agreed Allocation to a court of competent jurisdiction, the parties understand that such litigation is frequently not in the best interests of the minor child and agree to seek judicial intervention only as an avenue of last resort. As such, the parties shall first attempt formal mediation with a mediator they can mutually agree upon, and if they cannot mutually agree upon a mediator, with the Cook County Family Mediation Services. Mediation shall not be a requisite for matters involving an emergency or issues regarding possible contempt by one party”

It is extremely difficult to immediately modify decision-making responsibilities within two years of entering the last order enshrining those responsibilities.

“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)

After 2 years, courts still need a substantial change in circumstances in order to modify decision-making.

“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)

If the parties agree to modify the decision-making, the court doesn’t have to wait or need a big change to approve the agreement.

“The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if…the parties agree to the modification” 750 ILCS 5/610.5(e)(4)

More realistically, if you can prove that you have been making all the decisions anyways until the other parent started making one unreasonable demand, the court will modify decision-making if “the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent.” 750 ILCS 5/610.5(e)(1)

Being a parent means making decisions for a child. Otherwise, you are just hanging out with a child. Be sure that you have an active role in your child’s upbringing and that the other parent’s judgment isn’t supplanting your own. Contact my Chicago, Illinois family law firm to learn more about your options.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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