There are many things that parents do when they are going through a separation from a partner or a divorce where a parent could lose custody – or impact their rights to make decisions for their minor children going forward, or which could thwart their parenting time schedule. Illinois no longer uses the term “custody”. Instead, the major decisions that need to be made relative to a child’s healthcare, education, extra-curricular activities and religion are now allocated as “parental responsibilities” between both parties, or to one party. This was formerly what we called legal custody. There is also now a parenting time schedule in Illinois that dictates where the minor children are on which days, and with which parents, which is called the parenting time schedule. Both of these things can be severely impacted when two parents cannot “play nice in the sandbox” and it is important to know situations where your rights could be impacted, based upon your behavior. There are several major reasons which could contribute to parents losing parenting time or allocation of parental responsibilities.
Mediation is a Failure.
One reason a parent may lose custody of their child is mediation is a failure. Absent an order of protection being in place between the parties, or another impediment to mediation, the parties will likely be ordered to mediate child custody matters before the court will adjudicate any issues between the parties. If mediation fails, the Court may appoint a guardian ad litem (GAL). Mediation fails when parties are so far apart that they cannot come to an agreement on their own. Mediation completely failing is always going to be a bad sign to the Court, because parties should be able to agree on certain things for the best interests of their minor children. Parties who can at least come to a partial agreement, if not a full agreement in mediation, demonstrate the willingness and ability to work together. The Court is only going to award joint allocation of parental responsibilities to parents who stand a chance at resolving their differences in mediation. So, if mediation completely fails, the odds of both parents being allocated joint parental responsibilities significantly decreases. This will cause more litigation and more expense for the parents, as well as additional stress.
A Parent Does Not Facilitate a Relationship between the Child and the Other Parent (sometimes arising to what is called “alienation” of the child).
When parents fail to facilitate their child’s relationship with the other parent that parent could lose custody. In fact, this is the worst offender by far in child custody or allocation of parental responsibility and parenting time cases. Parents who do not facilitate a relationship between their child and the other parent stand to lose not only their decision-making abilities but also parenting time. Parents may think they are being supportive of their children’s wishes by letting them “drive the bus” or they may believe their children have a “right to know” things that they genuinely have zero need to know. Certain issues are just between the adults, and many parents going through a separation or divorce are stressed and anxious and can no longer tell when they are “crossing the line”.
The best thing that a parent can do is facilitate a relationship between the other parent and the child, absent extenuating circumstances (i.e. domestic violence, abuse, etc.) This shows the court that you are committed to what is best for your children, over and above your own self-serving interests for revenge and the like. Your ability to put your child’s needs above your own is probably one of the biggest things a court will look at when deciding the allocation of parenting time and parental responsibilities, so it is extremely important.
A Parent is Just Too Difficult for the Other Parent to Work With.
This may come as a surprise, but it is possible for a parent to lose custody of their child for being uncooperative and difficult. It is baffling how many clients who are ordered to use a parenting app, such as Our Family Wizard or Talking Parents, are still not able to communicate in an effective way. These co-parenting apps are often ordered by the Court to create a record of the conversations between parties in a divorce or separation. The Court will review certified transcripts of the conversations, which demonstrates the tone of the messages, times and dates messages are sent/received/viewed (or if they are received, but not viewed) as well as more information. Even knowing this record is being made for the Court, some parties cannot help themselves from displaying their animosity toward each other.
The same thing happens in emails and text messages. Write the message as if the Judge and/or GAL will be reading it. They aren’t going to agree with your points and think you are vindicated by acting negatively or rudely to the other parent. In fact, they are more likely to say that you are the difficult one and, as a result, they aren’t going to try to force the other party to co-parent with you. If you are too difficult to work with “on paper” the odds are the Court will not force someone to try and work together with you to make joint decisions. And, if you press to a custody hearing on the allocation of parental responsibilities, it also looks bad for your case for sole decision making if you cannot communicate effectively because it shows the Court you are not going to be effective in notifying the other parent regarding decisions which were made and information sharing.