Allocation of Parenting Time & Responsibilities (Formerly known as Custody)
We at Feinberg Sharma recognize that your children are precious and that their interests must be valued. We care about your parental rights and your decision making. We listen to your concerns in raising your children. We advise you on how to best proceed given your facts and your family’s history, whether it is prior to your separation or dissolution process, during your conflict, or after your matter has been resolved. We represent parents in litigation, mediation and collaboration.
In 2015, Illinois law on “custody” changed dramatically. Parents are now awarded “decision making authority and responsibilities” consistent with the parents’ past performance and the ability of the parties to make joint decisions about major issues impacting the lives of their children. There is ongoing legislative pressure to “presume” children should spend equal time with both parents. Presumptions in the law are powerful. These legal changes reflect the current philosophy that parenting in intact families occurred with two adults nurturing, caring and being responsible for their children in a much more robust and hands-on fashion as in years’ past. What does this mean for you as a parent today?
Decision Making Authority encompasses four categories of responsibilities:
- Health Care/Medical
- Extra-Curricular Activities
- Religion–but only when a clear agreement has been exhibited or is in place.
Educational Decision Making: This category includes selecting or changing the child’s school; deciding if the child attends a public or private school; whether the child requires an individual educational plan (IEP) or a more modified version of this, a 504 plan and attendance at daycare or preschool. Private school usually requires the financial agreement of both parents when a viable public school option exists. Parents allocated the authority to both make decisions concerning the child’s education must demonstrate the ability to jointly select options for their children. Alternatively, one parent may be allocated the responsibility to make educational decisions subject to notifying the other parent of the choice.
Health Care/Medical Decision Making: This category includes making major decisions concerning a child’s medical, dental, optical and therapeutic care, including whether the child is vaccinated; selecting or changing the treating professionals; what specialist the child sees, if there is an agreement on the need; whether the child should see a mental health professional; whether the child should participate in occupational, speech or physical therapy or whether the child should wear braces or undergo certain medical treatments. Because these treatments cost money, courts prefer joint decision-making.
Extra-Curricular Activities: This category was newly added to the statute in 2015. Most children are involved in a variety of activities. If supported by both parents, then the children will do well. When the parents are in conflict, this becomes a source of ongoing conflict. Parenting struggles and disagreements may arise as to how many activities the child participates in, or what activities the child participates in. Travel teams usually cause the most problems due to the extensive time commitments to such activities. If a Guardian ad Litem or Child Representative has been appointed, they may be very helpful in this aspect of a case. Mediation is also an option to resolve these parenting conflicts.
Religion: The court will consider what religion the family, when intact, historically practiced. The court will also consider how that religion was practiced and to what extent. Major decisions regarding religion include the decision to baptize; religious ceremonies; religious training and how that occurs when one parent refuses to support such training. This is where the U.S. Constitution, specifically the First Amendment, interfaces with family law.
Decision-making authority for the above four categories may be jointly made; solely allocated to one parent or divided between the parents.
Parenting Time: In addition to the change in terminology from “custody” to “decision making authority”, the Illinois legislature no longer refers to “visitation”, now favoring “parenting time”. Parenting time is the time that a parent is assigned to be physically present and enjoy the company of one’s child. Parenting time includes regular weekday parenting time, holiday time and vacation time. Absent an agreement by the parents, the court will allocate parenting time based upon the child’s best interests, weighing a number of factors and considerations. Often a Guardian ad Litem or Child’s Representative can be instrumental in helping the parents reach an agreement or make recommendations to the court. Parenting time should be regular, consistent and liberal for both parents unless the court makes a finding of serious endangerment.
Right of First Refusal: The courts and the Illinois legislature recognize that a parent’s personal care for a child is preferable to a third-party caregiver. In 2015, this provision was officially added to the statute. The right of first refusal means that if a parent plans to leave the child with a third-party caregiver for a period of time, that parent must first offer the other parent the opportunity to care for the child or children. The court will consider whether the right of first refusal is likely to promote the child’s best interests.
Grandparents, Great-Grandparents, Siblings and Step-Parents: The 2015 amended statute provides certain rights to non-parents. A petition may be filed where there is a denial of visitation by parent to grandparent, great-grandparent, sibling or step-parent. The non-parent must prove that there has been an unreasonable denial of visitation by a parent and the denial has caused the child undue mental, physical, or emotional harm. Non-parents may petition the court and request electronic visitation (telephone, email, video conferencing), in-person time and overnight time. A parent must be deceased, missing, deemed unfit or incarcerated for a court to award visitation to a non-parent. This is another instance where the U.S. Constitution and family law intersect.
The team at Feinberg Sharma recognizes that your children are important. We take a thoughtful approach to advising and assisting clients when navigating their legal rights concerning their children. We recognize that a child’s physical, mental and emotional well-being must be protected. Our team has the experience, integrity, and the heart to guide you and protect your family.
© 2015 Joy M. Feinberg for Feinberg Sharma, P.C.