If your are getting divorce with kids in Illinois, then you’re probably thinking about “child custody.” But as of 2017, that’s a term no longer used in Illinois. It’s now called “allocation of parental responsibilities.” Per the Illinois Marriage and Dissolution of Marriage Act, there are various factors a judge is supposed to consider when making an “allocation” decision. As a divorce lawyer in Illinois, I’ve presented the factors in a FAQ format to help you better understand how a court will allocation parental responsibilities.
The allocation of parental responsibilities is determined by analyzing the “best interests” of the child. To do that, judges are supposed to consider the factors outlined in Section 602.5 of the Illinois Marriage and Dissolution of Marriage Act (the IMDMA”)(750 ILCS 602.5). Below are the statutory factors presented in an FAQ format.
One important point to note is that the following factors are not weighted in any particular manner. That means the judge can place whatever weight on a factor that he or she wants. Furthermore, it is important to keep in mind that there is a difference between what facts you think are present, and what the judge thinks is important.
What are the child’s wishes?
Per the statute, the judge should consider” The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making.” As you may know, the judge is to supposed to order what is in the child’s best interests, so what the child wants does matter. But frankly, it matters less for young children. When a child approaches 14 years of age, it starts to matter a lot more.
What is the child’s adjustment to present home/community?
The Judge should consider “the child’s adjustment to his or her home, school, and community.” This is another way to say that the judge should consider how comfortable the child is with the status quo – how things presently are. In allocation (formerly known as “child custody”) proceedings, the status quo is very important. Unless there is a really good reason to alter course, the judge will usually want the status quo to continue. But exactly how do you define the status quo? That’s a complicated matter and beyond the scope of this article.
What is the state of the parents’ mental health?
You might not be surprised that a judge should consider “the mental and physical health of all individuals involved.” And you might also not be surprised that in divorce, people are always saying the other person is mentally unhealthy. And many times, people do have mental health problems. One of the problems with divorce is the judge isn’t going to simply believe someone just because statements are made on a piece of paper. Proving things in court requires evidence, and that can mean deal with expensive experts. But as a divorce lawyer in Illinois, I have been very successful is demonstrating the other party’s mental health problems without the use of experts – by highlighting their own troubling behavior.
Can Parents Cooperate?
Co-parenting requires cooperation. So the judge should consider “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.” It is very common for one parent to want sole decision-making control, and for the other parent (who might be at risk of having less time with the children) to want decisions to be made jointly. It should be self-evident that co-parenting requires parents to work together, and therefore, the court will look into that issue. What often happens is that one parent make a really big deal about the impossibility of co-parenting in order to manipulate the court into granting that parent sole decision-making authority. That’s sad, but true. As most Illinois divorce lawyers will tell you, this is a common battle.
What happened in the past?
While what is currently happening is meaningful as the status quo, judges also should consider what happened in the past. For example, there could be some reason the status quo should not be followed. Therefore, the judge is directed to consider “the level of each parent’s participation in past significant decision-making with respect to the child.
Are there any prior agreements?
Judge are supposed to consider “any prior agreement or course of conduct between the parents relating to decision-making with respect to the child.” For example, let’s say that both parents are separated, an they both agree that they will share the kids 50/50. Then something changes. The court should consider that past agreement while considering all the facts and circumstances. But if you are thinking that this seems very similar to considering the status quo and what happened in the past, you’re right. The allocation factors are substantially redundant.
What do the parents want?
Illinois courts are supposed to decide the allocation of parental responsibilities based upon the best interest of the children. But perhaps obviously, the court will consider what the parents want. This is perhaps the least important factor.
What does the child need?
The Court will consider the child’s needs. Again, this is very obvious. That being said, it can be hard to determine a child needs. And parents are often motivated to portray a child’s needs in such a way that it benefits their own case.
How far apart do the parents live?
Courts should consider “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.” If parents live very far apart, there is less change that judge will order joint decision-making simply because the logistics involved.
Was there any restriction placed on a parent?
The Court should investigate whether a parent’s time with a child has been restricted per Section 603.10 of the IMDMA (750 ILCS 603.10, titled “Restriction of parental responsibilities”). If a parent seriously endangers a child, the court can order that parent’s time can be restricted in numerous ways including a reduction of parenting time, that a parent have only supervised parenting time, that the child be exchanged through a third party, that a parent not possess or consume alcohol or drugs, and more..
Who will help build healthy parental relationships?
If there’s one thing judge’s hate, it’s parents who try to ruin the child’s relationship with the other parent. The statute directs judges to look into “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” If judges see a history of badmouthing the other parent, whoever did the badmouthing could be in for a world of hurt. While it’s obvious that people often fight about kids in divorce, that doesn’t mean the kids’ relationships with the other side should be harmed. That being said, parents will sometimes use sneaking ways to try to distance the other parent from a child. Some examples include one parent causing the other to miss the child’s events, missing parenting time, or decreasing communication.
Was the child abused by a parent?
Like some other factors a judge will consider, this one is obvious. No one wants a parent to abuse a child. So the court will look into “The occurrence of abuse against the child or other member of the child’s household.” One think to keep in mind is what is considered abuse of a child. Per the Illinois Domestic Violence Act (the “IDVA”), a child is abused by being in the presence of a parent being abused.
Was there any abuse against the child or anyone else in the household?
The judge should also consider if there was an “occurrence of abuse against the child or other member of the child’s household.” Like some of the other factors the judge should consider, this one seems obvious. But one thing I always want my client to know is that they need evidence when they make claims of abuse. Otherwise, it is extremely likely that a judge will believe the person who is accused then denies the allegation. As an Illinois divorce lawyer, I’m accustomed to helping gather, organize, and use evidence related to physical violence.
Are there any sex offenders involved?
One would hope that a parent would not start a relationship with a sex offender. But people sometimes do strange things. That’s why the court is directed to consider “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”
What about everything else?
While the statute does list many of the most obvious factors a judge should consider, that doesn’t mean what the judge considers is strictly limited to what the statute specifically lists. That’s why the statute itself directs the court to consider “Any other factor that the court expressly finds to be relevant.”