As Chicago family law attorneys, we are often asked by clients if a 50/50 parenting plan is possible for children following a divorce. Recently, the Appellate Court reversed a trial court’s ruling giving the parents a 50/50 schedule in the case In re Marriage of Rachael Virgin and Justin Virgin [2021 IL App (3d) 190650]. The case is an interesting read because one justice dissented from the ruling and the pros and cons of a 50/50 parenting plan are discussed in great detail.
The parties each filed a motion against the other after their marriage. Justin filed a motion for modification of his parenting time and Rachael filed a petition to hold Justin in contempt for failing to provide medical insurance per the terms in the divorce decree.
Parents Were Given Equal Parenting Time
In November 2016, the parties were divorced. The judgment provided that Justin would maintain medical insurance and both parents were allocated joint decision making of their child, who was three years old at the time.
Rachael was allocated the majority of the parenting time (she was given more overnights than Justin was), but the custody judgment stated that Justin was the custodial parent with the majority of the parenting time for purposes of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/606.10 (West 2016)). The judgment was clear that the parties had equal parenting time.
Father files for a Modification of the Parenting Schedule
After the judgment was entered, Justin filed various motions, including one to modify the parenting time. Justin alleged that there had been significant changes since the judgment was entered, and essentially accused Rachael of many inappropriate behaviors that was not conducive to providing a safe environment for their child. Attached to his petition were communications between the parties concerning a variety of subjects, including their child’s sleep patterns, letters about the child’s dentist and other areas of concern.
The Court Appoints a Guardian Ad Litem for the Child
In cases where there is a conflict between the parents, and the judge cannot necessarily tell who is relaying accurate information, the judge will often appoint a representative for the child. In this case, the court-appointed a GAL, or guardian ad litem. The GAL is charged with investigating the complaints of the parents and if the child is old enough, discusses certain aspects of the case with the child to flush out how the parent’s issues are impacting the child. Since the GAL is the “eyes and ears” of the court, the GAL is a very important part of any case. By the time the case went to hearing, the minor child was over six years old.
Guardian Ad Litem Testifies on Best Interest of the Child
At trial, the GAL testified about the best interests of the minor child. The GAL testified about the high conflict that continued to plague this family and that there had been 6 orders of protection, investigations by the Department of Children and Family Services (DCFS), criminal proceedings, and mutual restraining orders. The GAL stated that the lack of communication and inability to reach an agreement worked to the detriment of the child. There could be no agreement on simple things like the child’s counseling, school matters, or even health care. The GAL recommended that the child continues in counseling at least once a week and that both parents get into counseling so that they could improve their communication and hopefully resolve their issues for the best interests of their child.
The GAL also recommended a change in the minor’s parenting schedule. Although the GAL found Justin to be aggressive and often times did not act appropriately toward Rachael, Justin was the parent that was able to provide a better atmosphere for the minor’s sleep habits and the parent coordinating with the doctors and school. A recommendation was made that the minor spend most of the week with Justin and then transfer over to Rachael’s house over the weekend.
The Family Court’s Ruling
The court awarded each parent 50% of the time with their child, contrary to the GAL’s recommendation. The court ordered both parents to attend counseling to work on their communications and required the parents to keep the minor child in therapy as well. The court imposed a $300 penalty for instances where either party was guilty of harassing, threatening, or demeaning the other parent in a communication with or to each other.
For Rachael’s petition to hold Justin in contempt, the court granted that motion. Neither party was happy with the court’s ruling and an appeal followed.
The Case Appeal
The reviewing court stated that parenting time may be modified upon a showing that a substantial change has occurred in the circumstances of the child or of either parent and modification is necessary to serve the child’s best interests. 750 ILCS 5/610.5(c) (West 2018). Upon such a showing, the court must allocate parenting time according to the best interest of the child. 750 ILCS 5/602.7(a) (West 2018). In allocating parenting time, the court shall consider all relevant factors of the statute.
Justin argued that the court’s order of 50/50 joint parenting time was against the manifest weight of the evidence. Justin stated that he recognized that a 50/50 parenting arrangement can be appropriate, but in this case, a 50/50 arrangement was not in the best interest of their child.
Did the Parties’ Animosity Toward Each Other Cause the Court to Award a 50/50 Parenting Schedule?
The court has acknowledged that courts have traditionally viewed 50/50 parenting time with caution where the evidence clearly showed that parents had too much animosity to be able to cooperate, and 50/50 arrangements have been set aside. See In re Marriage of Drummond, 156 Ill. App. 3d 672 (1987); In re Marriage of Bush, 191 Ill. App. 3d 249 (1989); In re Marriage of Swanson, 275 Ill. App. 3d 519 (1995). However, where the record shows that the parties are reasonably loving and capable parents who are sufficiently able to cooperate even though each party attempted to prove the other was less capable, the 50/50 arrangement could be upheld. See In re Marriage of Hacker, 239 Ill. App. 3d 658, 661 (1992); see also Perez, 2015 IL App (3d) 140876 (the parties were cooperative and could reach shared decisions together in the best interest of the child).
In this case, the court continued to name Justin as the custodial parent but established a truer 50/50 schedule where the child would move between Justin and Rachael’s homes midweek and every other weekend. Under the circumstances presented, the reviewing court found that the alternating schedule was not in the minor’s best interest.
The appellate court that the evidence presented showed that the parties had too much animosity to sufficiently cooperate with each other. The GAL testified that this case presented one of the highest conflict cases he had ever seen in his experience as a GAL and attorney. The GAL also described the parties’ communication as unproductive, which is clearly supported by the record. While the court believed that both Justin and Rachael parented well, it acknowledged that they did not co-parent well.
Additionally, the Appellate court found that the alternating schedule failed to address the minor’s needs and health. The minor child suffered from anxiety, asthma, and upper respiratory issues. There were struggles and conflicts between his parents, and the child had behavioral problems as well as sleep issues. The reviewing court agreed with the GAL’s recommendation. The Appellate court reversed the trial court’s order regarding the regular parenting schedule and remanded the case back to the trial court to provide Justin with the majority of the parenting time.
Not all the justices agreed that the trial court’s ruling should be reversed. Justice Lytton disagreed with the reversal of the parenting time. He cited multiple cases which demonstrated that equal parenting time is generally not a good idea for the kids, but in certain cases, it is necessary. For instance, in the case of Divelbiss, 308 Ill.App.3d 198 (1999), the father was given five months out of the year due to the mother’s alienating behavior. Further, if the parenting plan is designed to maximize the involvement of both parents, then a 50/50 parenting plan should be encouraged.