Illinois Marriage and Dissolution of Marriage Act. Changes to Family Law- Part 3 of 3- Custody

Michael Wurster:

Hi everyone, my name’s Michael Wurster. I’m an attorney here at Zanck, Coen, Wright and Saladin in Crystal Lake. I specialize mostly in family law even though I do do general law. Today I like to talk to you about a couple of updates and developments in the Illinois Marriage and Dissolution of Marriage Act which covers family law in Illinois.

Custody and Visitation Changes, Parental Responsibility

Okay and for our final topic on the changes to the Illinois Marriage and Dissolution of Marriage Act is that there’s no such thing as custody or visitation anymore. I hear it all the time speaking with potential clients that “Well I want custody” or “I want a certain amount of visitation”, the Act basically did away with those terms.

What we have now is parental responsibility and that’s broken down in two categories which is decision making and parenting time. I think there was a lot of confusion before about what custody and visitation was.

I hear people all the time say “Well I want custody because I want my kids”. Custody was never a determination about who had the children. It was just a kind of a hand-in-hand situation where if the judge had determined that you should be the custodial parent, meaning you should have all this significant decision-making powers, they did that because they felt you were the better party to make those decisions and had your child’s best interests in mind and you’re the party who was more likely to make the best choices for your children’s best interest. Well if that’s the case, they also probably believe that you’re the parent who the children should live with the majority at the time and that makes sense.

Custody was always really about significant decision-making unless you had residential custody which would then would be a determination of technically who the child lived with and even still now, you might have that designation for enrolling your children in school even with 50/50 parenting time.

You will normally see a designation in the MSA, a marital settlement agreement, as to who’s the residential custodian even though the children are living at the parent’s house is equal amount of time, just for any registration papers if you have to put an address now for your child somewhere to where they technically live, even though again they might be living in both parties houses on an equal time basis.

Visitation, again, is actually the amount of time you have with your children.

When you think about visitation, you’re visiting with your kid, how long do you have to visit with your child. It has been like this for a while tends to be one parent gets a majority of the parenting time and the other parent tends to get every other weekend with one night a week, and when I say one night during the week, it’s not an overnight. It tends to be from after school until 7, 8, 9 o’clock at night, whenever the parties agree the children have to be home.

It gives that parent time to maybe go grab dinner, do their homework, take them to a practice that night, spend time with them during the week, so there’s not such a long break in between their every other weekend because that is a long time to not see your child, but it is kind of changing now.

With the changes in the law, it’s gone from custody to parental decision making, and visitation to parenting time.

That kind of makes sense because custody was always decision-making power anyway so they just called it decision-making and visitation was always the amount of time the parents got to spend with children so they change it to parenting time.

The one major difference that that does come out of this though is with custody before, it tended to be you either had sole custody where one party made all the decisions for significant decision-making and significant decision-making includes education, so where the child goes to school, tutoring, things of that nature, religion so how they’re going to be raised and what religious faith, so Catholic, Lutheran, Hindu, Muslim, Jewish.,  one parent might have the sole decision-making power on that and that might be a point of contention.

Medical decisions, do they need a surgery, do they need an elective surgery, are they going to go to the doctor today. Those are decisions that if one party headed, the other party really had no say, and then extracurriculars, which in today’s climate might be a bigger issue with concussions and injuries mounting where one party might not want their child playing football or ice hockey or soccer and another party might be completely fine with that.

Back before when it was just strictly custody, it was really either sole or joint, and joint both parties have equal say in every single one of those categories, right? Education, healthcare, religion, and extracurriculars.

After the change, sole still means the same. If one party gets the decision-making for parental decision making, they don’t have to consult the other party. They can make those decisions and move forward.

With joint, the parties now have the ability to say, “Look, we can either split every one of those categories equally. We have to talk with each other and come up to an agreement, otherwise we have to go to mediation or say one party is a teacher and one party is a doctor.

Well, the one party who’s a teacher and they might agree, they should have the sole decision-making power on their educational issues. The doctor might have the sole decision-making power on their medical issues, and those might not be joint and they’ll split the other two remaining issues then.

It gives you a little bit more flexibility on who can make decisions in it for each category of significant decision making. Now when I say significant decision making, that doesn’t mean what they eat when they’re at the other parents house, if they want to go to a friend’s house during their weekend off.

Things like that, each parent has the right to make those decisions when their child is with them.  When they go to bed, what they eat as long as it’s not harming them, who they’re around, and I understand that’s a point of contention because parents might conflict with how they want to raise their kids, but those are not significant decision making issues.

The next issue then is parenting time which again like I said for a long time, it was always one day a week every other weekend.

Depending on where your case is being handled, some districts, some courts are a little bit more conservative than others. Some courts are starting now from the same exact spot which is every other weekend, one day a week and you have to show why it’s beneficial and not harmful for the child to move towards a 50/50 parenting time schedule.

Other courts are now starting to move from I’m going to start with 50/50 parenting time, mom and dad get equal amounts of parenting time and unless you can show that it’s harmful for the child and it’s not in their best interest, then we’ll move to every other week in one day a week. If you can’t do that, then we should work on 50/50 parenting time because it is kind of more and more as we go along, there’s more and more articles and studies about mothers and fathers having an equal amount of parenting time in child’s life and the benefits for that.

There might be a movement over time that instead of this idea that moms automatically get a majority of the parenting time and fathers will get every other weekend, we might be start jumping off from 50/50 parenting time unless you can show a good reason for why that won’t work, that’s how the court you’re going to move for it. It’s not a guarantee. Some courts are much further along in this, some are much more staunch on it saying “We’re still sticking to every other weekend and one day a week”, but there’s a lot more room to have that take place now.