In past articles, we have described the substantive and procedural changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) dealing with parenting. Custody and visitation are terms that have been replaced with parenting time, care taking functions are now defined, and significant decision making authority can now be allocated to either or both parents regardless of parenting time. Procedures have changes also, including the requirement that parents must submit a parenting plan jointly and or separately to the court at the beginning of the divorce case.
There are other changes related to the parenting decisions as well. Some of the more subtle changes relate to the criteria for making parenting decision. Section 602.5a requires the court to make these decisions in accordance with “the best interest of the child” which has always been the standard. The factors for determining the child’s best interest are substantially similar to the current factors with some additional criteria, including: the level of each parent’s participation in past significant decision making for the child; any prior agreement or course of conduct between the parents relating to the decision making for the child; and the distance between the parties’ residences.
The allocation of parental responsibilities and parenting time is also based on the best interest of the child subject to a list of factors to be considered that is very similar to the list of factors the court previously used in determining visitation. Again, however, there are some additions based on the new definitions being used regarding parental responsibilities. For instance, 602.7b3 directs the court to consider the amount of time each parent spent performing care taking functions with respect to the child during the twenty four (24) months preceding the filing of any petition for allocation of parental responsibility. If the child is under two (2) years of age, the time period goes back to the child’s birth.
This is an important addition to the statute. Many times a parent will complain that the other parent did nothing to help or assist in the raising of the children until the divorce is filed. Suddenly, then the other parent becomes “parent of the year”. This provision will allow the court to look back twenty four (24) months in time to determine who was primarily handling the parental responsibilities relating to the child well in advance of the filing for divorce.
Section 602.7b4 directs the court to consider any prior agreement or course of conduct between the parties relating to the care taking functions. Again, this will allow the court to look at the actual the agreements of the parties and conduct prior to the divorce regarding who provided those care taking functions. The legislature has also added 602.7b12, which requires the court to consider the willingness and the ability of each parent to address the needs of the child ahead of his/her own needs.
While these things could have been considered under the previous law, they often were not considered, or were considered only as one of any number of factors the parties urged the court to consider. These factors now become standards to be applied in all cases, and a court must consider them. to that extent, these factors will also likely be given more weight than they were in the past, especially compared to factors that parents urge to be considered which are not enumerated in the law.
In the event that a parent is not allocated any significant decision making responsibility, or what we might have previously referred to as one parent obtaining sole custody of the children, the other parent is still entitled to reasonable parenting time with the child. This is consistent with the prior law where sole custody or primary custody and decision making authority went hand in hand. The real difference is that no parent will be labeled the “the custodial parent”; significant decision making responsibility will be allocated without regard to who has “custody” or how much parenting time is allocated; and parenting time will be allocated without regard to control over decision making authority.
This separation of parenting time and significant decision making authority may take some time to sort out. Practical reality may dictate in favor of giving the parent with the most parenting time the most decision making authority. There may be challenges in carrying out significant decision making authority for a parent with less parenting time. Separating out the decision making authority from the parenting time and allocating different decision making authority to different parents may be confusing and difficult to orchestrate, particularly if the parents have trouble getting along and working with each other. In those situations, all or most of the significant decision making authority may need to be allocated to one or the other parent, and the parent having the most parenting time is the likely candidate.
Parenting plans supersede parenting agreements under the old law. Section 602.10f dictates what must be included in the parenting plan. The requirements include: an allocation of significant decision making responsibilities; provisions for the child’s living arrangements and each parent’s parenting time including either a schedule or a formula for determining the schedule; and a mediation provision to address proposed reallocation of parenting time or the terms of allocation of parenting time.
Section 602.5 addresses the court’s responsibility in the allocation of parental responsibilities. As noted above , the court is directed to allocate decision making responsibilities according to the child’s best interest. The statute provides that, unless the parents have otherwise agreed in writing, the court shall allocate to one or both of the parents a significant decision making responsibility for each significant issue affecting the child. The significant issues affecting a child are defined as education, health, religion and extra-curricular activities.
In the past, these things defaulted to the custodial parent’s discretion, giving the custodial parent effective control of the associated decisions. With a joint parenting agreement, the custodial parent was required to seek the input of the noncustodial parent first, but the custodial parent had the ultimate decision making authority. With sole custody, the custodial parent often was not even required to seek the noncustodial parent’s input. The new law does away with the rule that one parent makes all the significant decisions. While one parent may still end up with all the decision making authority under the new law, the initial assumption is that decision making authority should be allocated.
The new statute gives the court broad authority to determine the allocation of responsibility for education, religion, health and extra-curricular activities; however, there are some limitations on the court’s decision making authority relating to religion. For instance, the court is required to allocate the decisions relating to religion in accordance with any express or implied agreement between the parties considering evidence of the parties past conduct. Therefore, if the parties previously agreed to a particular religious upbringing of the child, the court must consider that in allocating the decision making authority for that religious upbringing. Furthermore, the court shall not allocate responsibility for the child’s religious upbringing if the court determines the parties do not or did not have an express or implied agreement or if there is insufficient evidence to demonstrate a course of conduct relating to the child’s religious upbringing to serve as a basis for the order.
All of these changes will allow more fine tuning in parenting plans under the new divorce law and the orders that approve them than was allowed under the current law that is lapsing at the end of 2015. Divorce decrees will be more like a scalpel than the blunt instruments they have been in the past when it comes to parenting. At the same time, however, negotiating parenting plans will likely become more complex and litigation when the parents cannot agree may become protracted with more issues to be addressed and more open-ended options for parenting time and parental authority to be allocated between the parents.
Carolyn D. Jansons Drendel & Jansons Law Group 111 Flinn Street Batavia, IL 60510 (630) 406-5440 (630) 406-6179 fax www.ilfamilylaw.com [email protected]