Posted on November 18, 2022

Reserving Parenting Time In An Illinois Divorce or Custody Case

Divorces are messy. Divorces with children are REALLY messy. Illinois divorce courts will often try to bypass the messiest part of an Illinois divorce by reserving the parenting time issues until a later date.

Sometimes, an Illinois divorce court will be tempted to resolve the cleaner aspects of a divorce that can be determined with mathematical certainty like child support, maintenance and the division of marital assets. With 80% of the divorce issues resolved but the parents still fighting about parenting time, an Illinois divorce will be tempted to just reserve those parenting time issues until the divorcing parties settle into their new lives apart.

Reserving issues in final divorce documents is strongly discouraged. “The historical and practice notes [of the Illinois Marriage and Dissolution of Marriage Act] “encourage[] the court to decide all matters incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations and complications which can result from the entry of partial judgments, particularly judgments which dissolve the marriage but `reserve’ remaining issues for later determination.” In re Marriage of Cohn, 93 Ill. 2d 190, 197-98 (Ill. 1982)

Specifically, reserving the allocation of parental responsibilities and parenting time is not allowed under the Illinois Marriage and Dissolution of Marriage Act.

In lieu of using the term “custody“, the Illinois Marriage and Dissolution of Marriage Act use the twin concepts of “parenting time” and “parental decision making.” Neither of which can be reserved after a judgment of dissolution of marriage is entered.

Illinois divorce courts must order an “Allocation of significant decision-making responsibilities. Unless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities, or the issue of the allocation of parental responsibilities has been reserved under Section 401, the court shall make the determination. The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child.” 750 ILCS 5/602.5 (emphasis added).

Similarly, courts must enter an order “Allocation of parenting time. Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time. It is presumed both parents are fit and the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b) (emphasis added).

The best interest of the children require that each parent have their decision-making responsibilities and parenting time outlined by the court. The only exception is if the parties agree or the court makes a finding that the reservation of those parenting issues are appropriate.

“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist. 750 ILCS 5/401 (emphasis added).

Notably, parenting time is NOT included in this list of reservable issues in an Illinois divorce. The court must make a final order regarding parenting time.

When an Illinois divorce court does decide on parenting time and parental decision making, that Illinois divorce court must make that decision within a certain degree of specificity.

When ruling on custody issues, an Illinois divorce court should “mention the statutory factors and [should] provide a summary of the evidence as it related to the relevant factors in sections 602.5(c) and 602.7(b) [of the Illinois Marriage and Dissolution of Marriage Act]” Sadler v. Pulliam, 2022 IL App (5th) 220213

The level of specificity an Illinois court must describe its decision-making process is not very exacting.

“A [litigant’s] mere assertion that the trial court did not consider the statutory factors is insufficient to overcome the presumption that the trial court knew and followed the law.” In re Marriage of Whitehead, 97 NE 3d 566 – Ill: Appellate Court, 5th Dist. 2018

“The circuit court is not required to make explicit findings on each factor, nor is it required to refer to every factor.” Jameson v. Williams, 165 NE 3d 501 – Ill: Appellate Court, 3rd Dist. 2020

Some statement is required by the court to reserve parenting time or parental decision-making but no statement is not acceptable for the court to reserve these matters.

Telling judges what they can and cannot do in an Illinois divorce is welcomed. Illinois family court judges do not want to be appealed. Therefore, pointing out the law’s requirements to a judge is usually well-received. Furthermore, you can expect to be rewarded for your knowledge by the judge leaning in your favor on that particular topic. After all, you just showed that you know the law better than they do. A polite, “I’d like to remind the court…” is usually sufficient to get your point across.

If you’d like to politely tell an Illinois divorce judge what they can and cannot do with your parenting time and parental decision-making, contact my Chicago, Illinois family law firm to schedule a free consultation with an Illinois divorce attorney.

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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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