How to Interpret the Allocation of Parental Rights and How to Use The Law to Protect Your Family
When children are involved in a divorce or separation, it’s easy to feel that the stakes are so much higher.
You’re not just responsible for protecting your own interests. You also need to ensure you secure the best possible future for the kids too.
But there’s just not enough hours in the day to become an expert in family law on top of everything else.
With homework, sports matches, play dates, medical appointments – you’re already only just catching your breath.
How exactly will you find enough time to work out the perfect way of splitting their time in two – juggling negotiations and compromise along the way.
What about keeping track of the kids’ emotional and psychological well-being?
Studies have shown that parents’ behavior and attitude towards each other and the children during a divorce can directly affect how the children cope – even as adults themselves.
The pressure of getting everything right is exhausting.
Let’s slowly walk through what the law says about child custody in Illinois, so that when it’s time to talk about what will happen with the kids – you’re not starting with a blank canvas.
How to Agree On Child Custody
Lots of people worry they’ll be forced to go through a long and harrowing court case. That accusations will be flung around like mud and one person will be declared the winner – walking off with the children into the sunset.
It goes without saying that real life doesn’t play out like a TV courtroom drama.
Court proceedings should be seen as a last resort. They should only be started if there really is no other option and all other avenues have already been exhausted.
So – if you’re not rushing off to court – how do you solve differences of opinion?
Reaching an Agreement Through Direct Discussions
In most cases, both parents love their children and want the best for them.
That’s a great starting point and should mean that the expense and stress of court can be avoided – because children don’t benefit from that either.
A great option for agreeing to custody arrangements for the children is to take some initial advice specific to your situation from an attorney – to understand how the land lies and what other families in your situation are doing.
Your ex can also do the same.
Once you feel like you have enough knowledge and a common desire to benefit the children, you can arrange a time to sit down with your ex and talk things through.
Organize to have some coffee and throw out some different ideas. Don’t involve the children though.
Accept that neither of you will get everything you want but that it’s perfectly possible to make a compromise that you’re happy with. Aim to meet somewhere in the middle.
Once you’ve agreed, you can go back to your attorney to ask them to draw up the relevant paperwork to make the agreement legally binding as part of your divorce or custody case.
If reading about the idea of sitting down with your ex has made you laugh out loud – you probably need some outside guidance from a third party.
But that still doesn’t mean that you’ll ever need to sit in front of a Judge.
Mediation is an excellent option for discussing child custody while going through a divorce.
The mediator will usually be a practicing Family Law Attorney or will be a Family Law Attorney who’s retired and now just offers mediation.
This means they’ll have a thorough understanding of what types of plans can be legally binding and, most importantly, they can indicate what might be likely to happen if you can’t agree at mediation and end up at court.
There’s nothing quite as motivating as knowing that you could end up with the same or worse decision by a Judge and also be thousands of dollars down if mediation falls through.
Mediators can’t advise either parent what they should or shouldn’t do.
Instead – they help you understand and consider the other’s point of view and ultimately what would be best for the children.
Agreements reached at meditation aren’t legally binding but the mediator will draw up everything that has been agreed – which you can then take to your divorce attorney to do what’s necessary.
Sometimes, your separate points of view are just so far off that no amount of discussions or negotiations will help you.
In this case – the only way you’ll ever reach a decision is if someone else – a Judge – makes it for you.
Going through the court process doesn’t mean that you’ve failed or that you need to go into attack mode.
In fact – just because court proceedings have been started – it doesn’t mean you can’t still negotiate and reach an agreement behind the scenes at any point.
You should, though, be prepared for some level of stress and expense – the amount of work involved in a full trial should not be underestimated.
The rest of this article goes through what the court looks at and what that could mean for you.
What Does ‘Custody’ Actually Mean?
The term custody has multiple different meanings depending on where it’s used.
In truth, the legal term in Illinois is no longer custody at all. Attorneys will now talk to you about ‘allocation of parental responsibilities’.
Specifically – parental responsibilities, or custody, is split into two parts: Significant Decision Making and Parenting Time.
Establishing Paternity – The Very First Step
Before we dive into the nuances of custody, it’s important to address a preliminary matter: parentage. Parentage is the process of being declared a parent of a child under the law.
There are three avenues to parentage in Illinois:
- Voluntary Acknowledgment
Voluntary Acknowledgment occurs when you sign a Voluntary Acknowledgment of Parentage, which usually occurs in the hospital at the time of the child’s birth. This document is signed by both parties and is legally binding.
Presumption of parentage occurs when the child is born within a marriage – or during a certain time period before the marriage. In this case, both parents are placed on the birth certificate and each have rights to the child.
Adjudication of parentage occurs in court – usually when one party starts the child support or custody process and neither Voluntary Acknowledgment nor Presumption exists.
Once paternity is established, the court can then establish the custody (i.e. allocation of parental responsibilities) of the parties in regard to the child.
So What Does Significant Decision Making Actually Involve?
It means being allowed to make big, important decisions about the child that have an impact on their life.
Decision making responsibilities includes:
- choice of schools and personal tutors
- Health –
- Medicine / surgery / vaccinations
- Psychological treatment / needs
- Religious upbringing
- If this isn’t agreed, the court considers evidence of past conduct.
- Extra-curricular activities
What significant decision making authority does not do is give each parent power over every single decision that is made throughout the child’s life.
Everyday, normal decisions that parents have to make on a daily basis, such as:
- What they should have for breakfast
- Which piece of homework they should do that night
- Whether they should be allowed to go out to the movies with their friends
You get the idea.
For those decisions – the parent who’s caring for them that day is responsible.
Parenting Time outlines how much time the children spend with each parent – and when.
As you’ll see, each family has their own needs and circumstances so each parenting time agreement will be unique.
What every agreement has in common, though, is that the starting point is to put the best interests of the children at the absolute center.
Why 50-50 Parenting Time Might Not Be The Best Idea
Oftentimes, parents will believe that it’s fair, on both them and the children, to split the time equally.
As in – they try and work things out so that there is an exact 50/50 split.
As honorable and trustworthy as that is in principle – it is basically impossible to work out in practice, or at will look different than you imagine.
Annoyingly, there are seven days in a week which don’t easily divide into two halves. Unless you’re going to be really neurotic and insist on working out the hours in a week and splitting it that way.
Plus – you have to factor in school time. There’s no way you can pick them up from school on Wednesday at 12pm to start your time.
Splitting up their time during the school week also has its issues. Especially when the children are old enough to start hobbies.
It’s not fun to lug around musical instruments, sports kits and so on every week, back and forth.
Or to have that sickening feeling that an important project that you need to present to school tomorrow has been left at your other home.
Unless you have the funds to buy two of everything – having a base during the school week is vital for an organized life. And when it comes to success at school – organization is key.
Oftentimes the most successful 50-50 splits establish a primary parent during the school year, and equalize over the breaks and summers. In this way, the children enjoy a solid home base for school but are able to see both parents equally.
Working Out Parenting Time Arrangements
If you’re not going to split the kids’ time equally down the middle – how do you work out what’s best?
Parenting time is divided in accordance with the child’s best interests. But how is that decided?
Especially when each parent offers their own benefits.
The law in Illinois offers a checklist of sorts which – whether you are going through the courts or not – is useful to understand.
Grasping which facts are relevant and which aren’t so relevant can save you masses of time and money.
Children at Risk of Harm
It goes without saying that of utmost importance is ensuring that the child is not going to come to physical, mental, moral, or emotional harm.
If the children have been harmed in the past or you have serious concerns that they will be if left with the other parent then court proceedings need to be issued.
Witnessing abuse, but not necessarily being abused themselves, is still considered to be emotionally harmful.
Balancing the Other Factors
The Wishes of Each Parent
Saying that you ‘want to see the children’ is not enough. That’s way too vague and doesn’t help anybody.
You need to come prepared with a full plan – dates, times, plans for holidays, birthdays, who’ll be doing the driving, where the handovers will be and so on.
Each parent’s plan can then be seriously evaluated.
The Wishes of the Children
Age is a huge factor here.
As the children get older, it’s no longer possible to just pick them up and strap them into the car seat. Older children can and will vote with their feet.
There’s not really a set age where their wishes have more weight, though.
A fifteen year old can be emotionally immature – not understanding all of the nuances of the family dynamic. Thinking they know what’s best for them, but not actually knowing.
A nine year old can be intelligent, thoughtful, able to express their feelings and evaluate how they want to spend their time.
The Status Quo
Known in the law as ‘previous family history’ – the courts are interested in what the children have experienced in their lives so far.
It’s best for kids to have as little disruption as possible to their current routines.
So if mom, for example, took reduced hours at work in order to fit in with school hours – it will be implied that she’ll continue to be the main carer.
This is where the myth that mother’s get preferential treatment comes from. If dad did most of the running around then of course that would be considered in the same way.
To figure out who the ‘main’ carer is – ask yourself who the school would call if the kids get sick, and who would be the one to go and collect them.
If a parent’s ability has been good enough in the past – it’s probably good enough now.
You’ve been happy to leave the kids with your ex during the relationship – when you had to work or socialize and so on.
So if you start to question whether the children would be safe and happy with their other parent, it doesn’t look sincere.
The flip side is also true – if you’ve always ensured that you’re present or that someone else is because you have had concerns, this is a good reason to say it should be taken into account.
The Children’s Needs
Even where both parents want the other to continue to be involved as much as possible, often the children have certain needs which mean it would be in their interest to spend more time with one over the over.
They might have complex medical or educational needs which means that constantly moving back and forth would cause them harm – either physically or emotionally.
Children also have other needs which aren’t as obvious – help with succeeding at school, developing social skills, maturing emotionally.
Even though both parents might be able to offer the basics like food and shelter, one might just be more capable at meeting these more subtle needs.
Parental alienation has become somewhat of a buzzword and can be overused.
The court do consider, though, which parent is more likely to promote the kids relationship with the other parent
If it’s obvious that one parent will just shut down contact, believing the kids are better off with them and only them, they’re not likely to gain residence.
The court shall not consider conduct that does not impact on their relationship with the child.
That is to say – they’re not interested in who did what a decade ago before the kids were on the horizon. It’s also expected that parents will have their own life outside of their kids and – as long as it’s legal – whatever they do in their own time, however they choose to let their hair down – will be seen as a red herring.
They can, however, take into account any other factors which aren’t specifically included in the law but which can’t be ignored.
Again – every family is unique so it’s not possible to cover all bases in a black and white law which covers the whole of the State of Illinois.
How a Lawyer Can Help With Custody Arrangements
Hiring an attorney is expensive – there’s no way around that.
But not getting the correct legal framework in place the first time round can be an expensive mistake.
If you reach an agreement with your ex that’s not completely watertight – standards start to slip.
You start to ask yourself questions – flexibility is good but should there be this much flexibility? Are you really going to switch weekends again?
Ironing out any room for misinterpretation benefits the whole family – everyone knows where they should be and when.
And sometimes it’s just not possible to see this when you’re so involved.
As a specialist niche law firm, the attorneys at the Law Offices of Robert B Buchanan only practice in family law. This means we spend all day, every day helping navigate complex
We can help you analyze the factors outlined above and explain those which time and space didn’t allow to be covered – yes there are more!
To speak to an expert attorney – call (312) 757-4833 or click here.