Custody and Visitation - The Law Office Of Robert B. Buchanan

Custody and Visitation

Custody and Visitation are the backbone of family law litigation. The legal name for these concepts, that you will run across in your research, is allocation of parental responsibility, or APR. APR deals with two different matters. First is decision-making. Who will take responsibility for the big choices in the child’s life? Second is parenting time. What is the basic schedule that the parents will follow in caring for the children? Learn more below.

What Can We Teach You About?

Allocation of Parental Responsibilities is the legal term for what we all call custody. In every divorce case involving children, the court must provide for an allocation of parental responsibilities. For short, we’ll call it APR.

APR has two separate parts. Part one has to do with which parent (either one or both) will be responsible for the big decisions in the child’s life. These decision generally fall into the categories of education, health, or religion.

Part two has to do with parenting time, also known as visitation. That is, what is the specific schedule the parents will follow for caring for the child.

Like all issues in a divorce, the parenting time schedule is determined either by agreement of the parties or by the court after a trial.

In Illinois, the court examines, and ultimately decides, issues of APR based on one measurement: what is in the best interest of the child.

For deciding who should make decisions with regard to the children, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;

(2) the child’s adjustment to his or her home, school, and community;

(3) the mental and physical health of all individuals involved;

(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

(5) the level of each parent’s participation in past significant decision-making with respect to the child;

(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;

(7) the wishes of the parents;

(8) the child’s needs;

(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on decision-making is appropriate under Section 603.10;

(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(12) the physical violence or threat of physical violence by the child’s parent directed against the child;

(13) the occurrence of abuse against the child or other member of the child’s household;

(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and

(15) any other factor that the court expressly finds to be relevant.

In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of each parent seeking parenting time;

(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;

(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;

(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;

(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to his or her home, school, and community;

(7) the mental and physical health of all individuals involved;

(8) the child’s needs;

(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on parenting time is appropriate;

(11) the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;

(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;

(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(14) the occurrence of abuse against the child or other member of the child’s household;

(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);

(16) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and

(17) any other factor that the court expressly finds to be relevant.

Importantly, it should also be noted that the court is prohibited from considering any evidence of conduct of a parent that does not affect his or her relationship with the minor child. For example, unless it is somehow disrupting the parent/child relationship, the issue of infidelity is irrelevant to the custody determination.

It is not uncommon that a child custody issue will arise where the parents live in different states. The first question that potential clients usually ask is, “where should I file my child custody or support petition if the other parent lives out of state?” or “where should I look for a lawyer if two states are involved in a custody dispute?”

To understand the possible answer to these questions, we must go to the law. Every state in the country except for Massachusetts has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which dictates where a child custody petition is properly brought.

The UCCJEA sets forth which court is the proper place for an initial custody determination. Under the UCCJEA, a court may make an initial custody determination if it is the “home state” of the child.

In its most simplified definition, the “home state” of the child is defined as the state where the child has lived for the last six months. The UCCJEA also provides for establishing the proper state in cases where the six-month rule cannot be applied.

The UCCJEA is far more complex than just applying the six-month rule in order to determine where an initial custody petition should be brought. Your situation could be one in which it would make sense to file a petition in a state that is not the “home state” of the child. Your situation could also be in one which the UCCJEA does not even apply.

Call a lawyer if you’d like help in determining how to make the first step in working out your custody issue.