People should be encouraged to give their child more time than what is provided in the parties’ parenting agreement, right? As a matter of public policy, it is good for parents to get along and encourage each other to spend more time with their kids, over and above what is allowed in a Judgment providing for parenting time. Usually, all other things equal, this is in the best interests of the family dynamic and the minor children. In a perfect world, everyone gets along and the children are happy, and everything is wonderful. However, under the revised Illinois Marriage and Dissolution of Marriage Act, there is a provision that could put a damper on this practice.
Section 750 ILCS 5/610.5(e)(1) provides for an exception to the modification of parenting time within 2 years that I discussed in my blog post last week. It allows for modification of parenting time, essentially, to conform a Judgment to what the parties have “already been doing” for the past 6 months, so long as it is not due to one parties’ acquiescence. So, if someone is disabled and unable to give consent to the other party having more time, the agreement wouldn’t be modifiable to conform to what the parties were actually doing. However, it appears, based upon a cursory read of this section, that if the parties agree that parent A can have more time than what is in the Judgment, and this continues for 6 months, parent A can then file a motion to modify the Judgment to conform to same. It may take case law to further clarify this section, but this is a bit scary and causes some issues with how to advise clients. Clients must be warned in advance that if they allow more time for 6 months, a petition to modify the time to conform to what is actually happening may be on the horizon – and depending upon how the time is allocated, it could give rise to a modification of child support. So, one must now be careful when affording the other parent more time than what is actually in a judgment, to the detriment of the minor children, in some instances. Hopefully case law will further clarify how this section is interpreted, since it is still very new law.