Divorces are difficult wherever they are. An Illinois divorce with a child or with children is even more difficult. I often tell clients who have no children or have grown children, “your divorce is automatically 75% easier than the average divorce with a child.”
Is It My Child?
In Illinois, all children born to a woman while a couple are married are presumed to be the children of that couple.
Illinois statute 750 ILCS 46/204 states that “A person is presumed to be the parent of a child if: The person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship…”
Even kids who were born to parents before they get married are naturally assumed to be the children of the parents under the law. “Children whose parents marry after their birth are the lawful children of the parties.” 750 ILCS 5/503
A father can contest that he is the father of a child and lose all the rights and responsibilities that father would have towards that child.
“A person challenging a presumption under Section 204 of this Act may rebut the presumption with clear and convincing evidence” 750 ILCS 46/206. In today’s modern world, clear and convincing evidence means the father and the child must take a DNA test. In Cook County, Illinois the courts do the test at the courthouse through one specific provider. It is easier, cheaper and certainly less dramatic to just buy a DNA test off of Amazon and contest parentage after you receive the negative test result in the privacy of your own home.
Most requests for court ordered DNA tests will be denied, however, because there is a time limit as to when you can request a DNA test. “An action to declare the non-existence of the parent-child relationship…shall be barred if brought more than 2 years after the petitioner obtains actual knowledge of relevant facts.” 750 ILCS 46/205(d).
If it is two years later and that child consciously thinks you are the father, you better have some kind of amazing discovery that just recently led you to believe the child is not yours. The court will otherwise declare you the father for the good of the child…and probably your own good as well.
If your child is adopted by someone else (such as a new step-parent) your rights and obligations to that child are terminated even if you had a previous order granting you rights or obligations.
What Are My Rights To My Child?
Until there is a petition for dissolution filed between you and your spouse neither of the parties have any special rights to the child vis-à-vis each other. If you call the police because your husband or wife won’t let you see your child, the police will advise you to file something in court.
In fact, your spouse can put your children in a car and travel anywhere in the United States. Until something is filed in court, you cannot kidnap your own children. But once something is filed in divorce court, kidnapping can become a very real thing.
Once a petition for divorce, a petition for legal separation or a petition for declaration of invalidity of a marriage are filed, the issues of the rights to the children gets addressed through an “Allocation of Parental Responsibilities.”
While the Illinois statute calls them “responsibilities” what the statute is really referring to the rights to make decisions for the child.
Most parents agree to share in the making of all major decisions. Parents who can’t communicate effectively have to divide the decision making into at least four factors 1) Education, 2) Healthcare, 3) Religion and 4) Extracurricular activities.
For example, if a religious doctor and a physical education teacher were to divorce in Illinois, It is foreseeable that a religious doctor would make all the decisions in regards to the religion and healthcare of the child while the physical education teacher would make all the decisions regarding education and extracurricular activities. Even in this logical scenario, the result can seem silly which is why almost all parents either share decision making or one parent has responsibility for all of these factors.
These decision-making factors do not have a strong effect on what really matters, parenting time. “A parent who has established parentage under the laws of this State and who is not granted significant decision-making responsibilities for a child is entitled to reasonable parenting time with the child” 750 ILCS 602.8
Visitation and Parenting Time in Illinois
The real “right to the children” that divorcing parents are inquiring about is their right to spend time with the children. While often called “visitation,” the Illinois legislature has abandoned the word visitation in lieu of parenting time. This is a healthy change because you can no more “visit” your own child than you can “babysit” your own child.
The courts have various mechanisms to encourage the parents to agree on a parenting schedule. The courts require each parent to exchange a proposed parenting plan within 120 days. If the parents cannot agree on a parenting plan then the parents are required to attend mediation.
If after mediation, a parenting schedule is still not agreed then “the court shall allocate parenting time. It is presumed both parents are fit and the court shall not place any restrictions on parenting time” 750 ILCS 602.7(b)
So, the courts will give both parents parenting time unless “unless the court finds, after a hearing, that the parenting time would seriously endanger the child’s mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/602.8(a)
If the courts have to order a specific non-agreed parenting schedule, “[t]he court shall allocate parenting time according to the child’s best interests.”750 ILCS 5/602.7
“Best Interests” is a really broad term. The Illinois statute lays out 17 factors that the court can consider when allocating parenting time. These factors are really instructive of how parents should explain the facts to their lawyers and/or a judge when determining parenting time. The statute says that your wishes, your children’s wishes, your routines, and your history will all impact the court’s determination of a parenting schedule.
“(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.” 750 ILCS 602.7(c)
These 17 factors really cover just about anything. If the other parent brings up issues that are not in the 17 factors, you can advise the court that “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 602.7(c).
As these 17 factors change throughout you and your children’s lives if the change is deemed “substantive” you can petition the court to modify the parenting schedule in light of these changes.
Of course, in theory, almost anything can affect a parent’s relationship to the child but it’s important to establish boundaries and not be afraid to say something like, “If I go out on the weekends I don’t have my children, that should not affect my time with my children on the weekends I spend with them.”
Finally, it’s important to note that each parent has a fundamental constitutional right to have access to his child. Only the parents have this right. The Illinois statute provides a mechanism for grandparents, step-parents, and siblings to visit children but the courts have held non-parents’ rights to a child to be unconstitutional if the parents of a child do not agree to allow that grandparent or step-parent to see the child.
What Are My Obligations To The Child?
Before, during and after a divorce you will have obligations to your children.
The court cannot force you to be a good parent or even force you to spend time with your children. If you decide that you do not want to be in your child’s life, you are under no obligation to have a parenting schedule between you and your spouse. You will, however, have a financial obligation to the child no matter what.
Child Support in Illinois
“[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child.” 750 ILCS 5/505(a)
How this duty is calculated as child support is not so simple.
There are 365 days in the year. If a child is spending less than 146 of those nights with you (that’s less than 3 nights a week) then the other parent is the custodial parent for child support purposes and you will be obligated to pay “guidelines child support”
The calculation of Illinois’ guideline child support then involves totaling up both parents’ gross incomes to determine what it should cost to raise the child (the children of rich people cost more to raise than those of poor people according to the Illinois Compiled Statutes).
At this point, the numbers are usually plugged into the Illinois Department of Health and Family Services’ website to determine what the child support should be.
If the non-custodial parent is spending more than 146 nights with the child per year, the child support will be reduced to reflect that the parents are “sharing the child” more than most divorced parents share time with their children.
Note that maintenance (formerly known as “alimony” in Illinois) will be reduced from the maintenance payor’s income and added to the maintenance receiver’s income when calculating child support in Illinois. This prevents a windfall if one parent is receiving both maintenance and child support. In reality, it essentially reduces child support to a non-consequential number.
As either parents’ income changes, either party can petition the court to modify the child support order.
Child support in Illinois lasts until the child turns 18 or graduates from high school, whichever comes first. Child support never is required to be paid past a child’s 19th birthday unless the child is disabled.
Child Expenses in Illinois
Child support is not the exclusive support obligation a parent has to a child in and Illinois divorce with a child. Child support is contemplated as providing food clothing and shelter to the child. As any actual parent will not, kids have a lot more expenses than just their food, clothing and shelter.
“Extracurricular activities and school expenses. The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable school and extracurricular activity expenses incurred which are intended to enhance the educational, athletic, social or cultural development of the child.” 750 ILCS 5/505(a)(3.6) (Emphasis mine)
Note that extracurricular expenses are not required to be split. The court may or may not order both or either parents to support extracurricular expenses. So, if you love hockey and enroll your child in hockey, you may find yourself paying for the full expense of the hockey lessons, games, equipment etc.
Child care expenses such as daycare, camps, and after-school care are always “proported in proportion to each parent’s percentage share of combined net income” 750 ILCS 5/505(a)3.7(b)
Child care expenses are any actual expense incurred while either party is working or going to school. You cannot ask your former spouse to pay for a babysitter while you go out on the weekends. You also cannot ask your former spouse to pay your mother for watching the children when your mother is not actually charging you anything.
Health care insurance expenses for the children are usually included in the child support calculation. The money each parent pays for health care insurance exclusively for the children. is one of the many inputs in determining the regular child support payment.
Health care expenses of the children not covered by insurance shall be divided by the court among the parents. This includes “unreimbursed medical, dental, orthodontic, or vision expenses and any prescription medication for the child not covered under the child’s health insurance” 750 ILCS 5/505(a)(4)(B)
Who Insures The Children In Illinois?
The Illinois statute requires that the parties disclose if health insurance is available from either party’s employer. “Whenever the court establishes, modifies or enforces an order for child support or for child support and maintenance the court shall include in the order a provision for the health care coverage of the child” 750 ILCS 5/505.2(b)(1)
“If neither parent has access to appropriate private health insurance coverage, the court may order (I) one or both parents to provide health insurance coverage at any time it becomes available at a reasonable cost; or (II) the parent or non-parent custodian with primary physical responsibility fot he child to apply for public health insurance coverage for the child and require either or both parents to pay a reasonable amount of the cost of health insurance for the child” 750 ILCS 5/505(a)(4)(C)
No matter who gets the health insurance for the child, “the obligor shall provide written proof to the obligee…that the required insurance has been obtained.” 750 ILCS 5/505.2(c)(1) This means that each parent needs to have a medical card for the minor child.
College Expenses And Divorce in Illinois
While all other obligations, health care, child support, etc., of a parent to a child in Illinois last until the child turns 18 or graduates from high school (whichever comes first), parents can still be required to contribute to their children’s post-high school educational expenses.
There are no guidelines as to who shall pay what. This is especially confusing considering that all colleges cost different amounts and the costs are usually subsequently reduced by loans, scholarships and grants. Moreover, an adult child is often expected to make some kind of contribution to his or her own education.
A parent’s obligation to pay college tuition and fees can be an enormous burden based on the actual expenses of the college the child attends. Therefore, the statute caps the expense in that “except for good cause shown, the actual cost of the child’s post-secondary expenses, including tuition and fees, provided that the cost for tuition and fees does not exceed the amount of in-state tution and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year.” 750 ILCS 513(d)(1)
How Long Does an Illinois Divorce With A Child Take?
When children are involved, divorces in Illinois are supposed to go a little faster.
All divorces that involve children shall resolve the children’s issues within 18 months.
“All allocation of parental responsibilities proceedings under this rule in the trial court shall be resolved within 18 months from the date of service of the petition or complaint to final order. In the event this time limit is not met, the trial court shall make written findings as to the reason(s) for the delay.” Illinois Supreme Court Rule 922
If you’d like to learn more about how to protect your children and yourself in a possible, pending or past Illinois divorce with a child, contact my Chicago, Illinois law office to talk with an experienced Chicago divorce lawyer.