In Part I of this three part blog series, we discussed all the various changes to Illinois' former custody law and the reasons why these changes were enacted. As we previously discussed, the intent of the new law is to not only take away the stigma of one parent “losing custody,” but also to ensure that both parents are as involved in the child's life as possible. We then asked ourselves, “did the law work as intended?” In order to answer that question, it is important to understand how the new law actually works. We already discussed how the new law changed the terminology from “custody” and “visitation” to “allocation of parental responsibilities” and “parenting time” in an attempt to achieve these goals. Part II of this series shall go into further detail on how the law works in an effort to achieve these goals.
One way in which the legislature attempts to achieve these goals is by mandating the court to allocate parental responsibilities (also known as decision making) to at least one of the parties, even if the parties cannot agree on how to allocate parental responsibilities. Section 602.5 of the Illinois Marriage and Dissolution of Marriage Act states that “[u]nless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities, . . . the court shall make the determination.” The Court is then instructed to allocate to one or both of the parties all significant decision-making responsibilities for all major children's issues including (1) education, (2) health, (3) religion, and (4) extracurricular activities. The Court decides whether one or both parties shall have significant decision-making responsibilities with respect to these issues by determining whether it would be in the child's best interests for one particular party or both parties to have significant decision-making responsibilities for the child.
Another way in which the legislature attempts to achieve these goals is by stating outright that neither parent has a superior right to spend time with the child than the other regardless of the allocation of significant decision-making responsibilities, unless certain criteria are met. Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act states that “[i]t is presumed both parents are fit and the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health.” As a result, the law presumes that both parents are fit to have unrestricted, liberal parenting time with their child regardless of whether that parent has been allocated significant decision-making responsibilities for the child. Theoretically, this should result in parents having more parenting time with their child even if they do not have significant decision-making responsibilities with respect to their child. If a party feels that the other parent should not have liberal, unrestricted parenting time with their child, the party seeking restrictions must prove that liberal, unrestricted parenting time would seriously endanger their child in some way. Unless the party seeking restrictions can prove their child is in danger while in the other parent's care, both parents must have unrestricted parenting time with the child by law.
Finally, the legislature attempts to achieve these goals is by requiring that both parents tender a “parenting plan” to the court within 120 days of filing a petition for allocation of parental responsibilities. A parenting plan is a comprehensive written agreement that allocates significant decision-making responsibilities and parenting time to the parties, which must contain certain criteria. Under the old custody law, there was no requirement that the parties submit a proposed custody order or visitation schedule to the court. Typically, the parties would not do this unless the court requested them to do so as part of a pretrial memorandum. Now, under the new law, the parties are required to submit a proposed parenting plan to the court, either jointly or separately, which outlines their desired allocation of significant decision-making responsibilities and parenting time schedule for both parties. If the parties fail to submit their proposed parenting plans to the court within 120 days, the court must hold an evidentiary hearing on these issues. Theoretically, this ensures that issues involving allocation of parental responsibilities and parenting time are resolved swiftly such that both parties are awarded parenting time with the child early on in the case, depending on the circumstances. Now that we know how the law works, in Part III of this series, we will discuss whether the law is actually working as intended.