Divorce for couples with children is usually a stressful process; often filled with tense moments for both the parents and the child or children. However, with the cooperation of both parents and recent changes to Illinois Family Law, many Illinois parents are now able to make their divorce considerably more tolerable than in the past. What was previously referred to in the Illinois Marriage and Marriage Dissolution Act (IMDMA) as “custody” is now broadly recognized as “allocation of parental responsibilities.” The judicial allocation of the parenting responsibilities is determined largely by a parenting plan submitted to the judge by the parties, i.e. parental responsibilities allocation judgments. This new revision to the law seeks to both stylistically and substantively soften the abrasive conditions associated with the division of parental rights, including the determination of decision-making authority between the parents as well as the living arrangements.
What is a Parental Responsibilities Allocation Judgment
According to inois Law, 735 ILCS 5/602.10, an allocation agreement or parenting plan is a “written agreement that allocates significant decision-making responsibilities, parenting time, or both.” Unless the parties request an extension, a proposed parenting plan must be filed by both parties within 120 days from the date that the Respondent received their court papers. All parenting plans are valid until the child becomes an adult, or until a modification is requested or made with the courts (modifications are not generally permitted until two years after an order is put into effect).
While the court will consider the plan as it is presented, the court may make modifications in the interest of the best interests of the child. In such an instance where the court finds the agreement is not in the best interests of the child, the parties may be compelled to participate in an evidentiary hearing regarding the terms of the agreement. Generally, though, if the plan has been agreed to by both parties, the court will accept the plan unless the agreement is considered “unconscionable.” Unconscionabilty is a very high legal threshold that is only reached when the facts behind the agreement’s creation suggest wrongdoing or impropriety by one or both of the parties. Thus, if the parents can agree on a parenting plan as indicated by their initials and signature, it is likely that a court will make it binding.
Failure to timely submit a joint parenting plan or failure of each party to submit their own parenting agreement may lead to evidentiary hearings regarding the best interests of the child and to potential mediation and subsequent court appearances. The parenting agreement need not be submitted if the parties intend on mediating the terms of the parenting plan.
1. The Creation of a Proper Parenting Plan
The creation of proper parenting plan must make two essential decisions when allocating parental responsibilities between separated parties:
a) the responsibilities of each party as a parent and
b) the time each parents spends with the children. Some matters are straightforward, such as situations of emergency care, where either “parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during the parent’s parenting time.” 750 ILCS 5/602.5(d).
However, many areas of parenting are complex, and thus a well thought out parenting plan needs to cover the most important areas of the child’s life where each particular parent or both, if agreed, will have the ability to make decisions for the child.
2. Requirements for a Parenting Plan
In general, a parenting plan should include as many contingencies as possible, however, there are four required “significant issues” that must be included in allocation agreements:
1) education, including the choice of schools and tutors,
2) health, including all decisions relating to the medical, dental, and psychological needs of the child,
3) religion, and
4) extracurricular activities.
Under Illinois law, parents can opt to specifically delineate each of these areas. For example, an allocation judgment could provide that a child’s father makes all decisions for a child’s educational upbringing, while the mother makes all decisions about healthcare and religion, and both parents make decisions regarding extra-curricular activities. Moreover, if one parent is a professor and the other a minister, a court might allocate the decision-making responsibility for education to the professor and for religion to the minister. Ultimately, the statute still applies the same standard under current law – that the court allocates decision making responsibilities according to the child’s best interests.
At a minimum, a parenting plan must set forth fourteen statutory factors according to 750 ILCS 5/602.10 as well as any other provisions that addresses the child’s best interest or that will otherwise facilitate cooperation between the parents. Thus, when parents file for divorce or parental rights, they must determine how much parenting time they want to spend with their child and the allocation of parental responsibilities such as the decision-making power in the children’s lives.
3. Parenting Classes are required In Illinois
In Illinois, parenting classes are required whenever parents of minor children are engaged in a court proceeding involving allocation of parenting time and responsibility. A parent who can demonstrate good cause that he or she should be excused from court ordered parenting classes may be excused, but the judge determine such excusal to be in the best interest of the child and the judge is required to document the court’s reasoning in the record. DuPage and Cook County courts state that the purpose of court ordered parenting classes are to: 1) train parents to promote healthy, business-like communication with each other and with their children; 2) teach parents how to prioritize and focus on their children’s best interests over their own disputes; 3) provide parents with skills and techniques to keep their children out of any conflicts between the parents; and 4) reduce the likelihood of the parents being involved in expensive and excessive litigation.
Failure to Comply With the Parenting Agreement
Violating the terms of parenting agreements and failing to comply with court orders can have significant consequences, especially where the court feels that the best interests of the children have been compromised by the failure to abide by the agreement. Failing to abide by the rules and limitations of a parenting plan can lead to fines or civil contempt of court charges. Some parents try to monopolize their parenting time by “over-scheduling” their children to disproportionately spend time with one parent, even if technically in compliance with provisions of the parenting plan. For example, a parent may opt to use vacation days around a holiday weekend and so that he/she can have the children for longer than just the weekend. Accordingly, it is best practice to start early in creating an agreeable plan and to keep communications open and honest between the parties.
What if the Parents Cannot Agree on a Plan?
Many intact families are able to cooperate and agree on a parental responsibilities and parenting time. However, sometimes divorcing parents may have conflicting values in regard to child rearing. In those cases, the judge imposes a plan, based on a determination of the best interests of the child. In determining what is in a child’s best interest, a judge must consider a variety of factors, including (but not limited to):
- the wishes of both parents regarding “custody”;
- the relationship between the child and the parents, siblings, and other significant people in the child’s life;
the child’s connection to home, school, and community;
- the mental and physical health of all the parties involved;
- and any evidence of violence or abuse on the part of either parent.
The child’s wishes are also considered, but only given substantial weight if the child is of a certain age and maturity level.
In the event that an agreement cannot be reached, the court may also appoint an evaluator, a Guardian ad Litem (GAL) for the children (a GAL is usually an attorney with family law experience as well as special training in interviewing parents and children for the specific purpose of making recommendations in the children’s best interest) or both in an effort to determine what the best interests of the children are. The attorneys at Anderson & Boback have a depth of diverse experience in negotiating parental responsibilities allocation arrangements. We specialize in helping clients design plans suited to their family’s needs, and we litigate boldly in cases where our clients are unable to agree upon a parental allocation agreement.
Contact Robert Tarlock for questions about this topic other related divorce or family law concerns.