In 2016, several changes were made to family law in Illinois, including changing the terms “visitation” and “custody” to “parenting time” and “parental responsibilities”. In this podcast, Chicago family lawyer Arin Fife explains what these changes mean for divorcing spouses with children in Illinois. She also discusses child support, including how the amount is determined and a new law that will go into effect this summer.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Arin Fife, Family Lawyer
Arin Fife is a family law attorney at Boyle Feinberg, P.C., a law firm with offices in Chicago and Arlington Heights, Illinois. Arin practices exclusively in all areas of family law and is a highly skilled mediator and litigator. She counsels clients on a wide range of divorce-related issues, including parenting time, maintenance, child support, and financial compensation. To learn more about Arin and her firm, visit www.bffamlaw.com.
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Read the Transcript of this Podcast Below.
Why is the word “custody” no longer used in Illinois?
Arin Fife: Some major changes have been made to Illinois family law in 2016. The Illinois Marriage and Dissolution of Marriage Act has gone through a major rewrite. With the new laws that have come into effect, one of the major changes is that the terms “visitation” and “custody” will no longer be used. Instead, these matters will be referred to as “parental responsibilities” and “parenting time”.
One of the reasons for these changes was simply to establish a more appropriate terminology; saying that one parent won custody of the children and the other parent may now visit, it’s kind of a harsh way of referring to these life-altering events. The courts wish to lessen the notion of establishing winners and losers, so it was thought that the assignment of parental responsibilities was a more appropriate term and it’s just a better way of resolving issues between parents when relating to the care of their children.
Is there actually a difference between custody and allocation of parental responsibilities?
Arin Fife: Under the new Illinois child custody law, decision-making authority regarding major subjects will not necessarily all be granted to one parent or all be granted to both parents as it used to be. Rather, the courts can determine which parent should be responsible for different subjects.
What are the responsibilities that can be allocated?
Arin Fife: These different responsibilities and subjects, there are really four main categories: they include education, religion, healthcare, and extracurricular activities.
Are the responsibilities allocated all to one parent, or can the different categories be allocated to different parents?
Arin Fife: As I said before, this is one of the major changes. It’s an advantage to the new law. There’s more flexibility in allocating decision-making power, it’s not an all-or-nothing as it once was. For example, a judge may decide that the mother should be responsible for making decisions on education and extracurricular activities and that the father is more appropriate to be responsible for making decisions with regard to healthcare.
A judge could also decide that both parents be responsible for decisions in one, two, or perhaps all of the areas. The judge will decide separately for each major area, and the assignment of parental responsibilities will depend on the facts of each situation in each case. Of course this can always be done by agreement if the parties are able to agree. Each case really has different facts and the results can be very different. If both parents agree on how to split and share these different responsibilities, they can enter into a written parenting agreement. But if they don’t agree, it will be taken to the judge and the judge will examine the facts of each case and use the best interest of the child to reach a decision on all of the areas.
What factors do Illinois courts consider in allocating parental responsibilities?
Arin Fife: When determining the allocation of these parental responsibilities, the judges will look at many factors to determine what is in the best interest of the children. These factors include, among other things: the mental and physical health of both the parents and the children; the ability of the parents to cooperate with decision-making for the child; how much each parent participated in the past decision-making for the child; the wishes of the parents; and also the child’s needs. The judge really will take all of the relevant situations in each individual case into consideration when making this very important determination.
Can you talk a bit about the difference between visitation time and parenting time?
Arin Fife: Visitation time was the term used prior to the changes which were made in 2016. It was commonly used to refer to the schedule which arranged when each parent would have the child with them. The typical arrangement was that one parent was granted residential custody or primary physical possession of the child. That parent will have the child or children with them most of the time and the other parent would then be the noncustodial parent. And they would be granted what’s called a visitation schedule.
The court would determine which parent would have residential custody based on also the best interests of the children. That reasonable visitation schedule was established. It was commonly thought that the appropriate visitation schedule would be alternating weekends and perhaps some time on one day during the week.
But under the new law, the term “visitation time” was replaced with parenting time. Since there’s not really any longer residential custody, the way that the parenting time schedules will be determined is really different than in the past. Similar to the subject of parental responsibilities, the court looks toward certain best interests of the children, different factors in reaching a decision on what the appropriate parenting schedule should look like.
What factors do Illinois courts consider in allocating parenting time, and what happens if both parents want to have the lion’s share of the parenting time?
Arin Fife: Similar to looking at the parental responsibilities, the courts look at different factors in allocating parenting time. These factors include, among other things: the wishes of both the parents and the wishes of the children; any prior agreements or conduct of the parents relating to caretaking; interaction of the parents and their siblings; the children’s needs; and also the distance between the two parents’ residents.
The judge looks at all of the relevant circumstances and considers them in making this decision. There is often a disagreement and parents want the lion’s share of time. What’s different now and what the reasoning behind this change in terminology has been to hopefully get away from this winning and losing. The courts have the ability to be more flexible in coming up with these parenting schedules and hopefully can make both parents maybe not 100% happy but do what’s best for the children and allocate that time appropriately.
How is parenting time and child support decided when dealing with children of unwed parents?
Arin Fife: Unwed parents really follow all of the same rules as any other parents when deciding what the parenting time and responsibilities will look like along with determining child support. The difference is there may be some additional steps required early on to establish the parentage of both parents to that child prior to beginning to look at the allocation and support issues.
How is the amount of child support determined?
Arin Fife: This is another big change that is taking place in Illinois. It actually has not yet been made, but there is new legislation that goes into effect on July 1, 2017, which will completely change the way child support is calculated in Illinois, rather than relying on the net income of the noncustodial parent, which is no longer noncustodial either. The new law will introduce an income share system, which relies on a more comprehensive set of factors when calculating child support.
Historically, child support was determined using a formula which depended on the noncustodial parent’s net income. This basic formula uses the number of children to determine the guideline percentage. For example, for one child it was 20% of the net income, 28% for two children, 32% for three children, and so on.
What is the income shares model?
Arin Fife: This is the new model which will go into effect July 1, 2017. It’s intended to hold both parents accountable for child support rather than only the noncustodial or obligor parent. Under the income share model, parents are designated a portion of child support obligations depending on how much they financially contributed to the combined household income while married.
There are three main areas considered in the income shares model, and those are base child support obligation, additional child expenses paid by each parent, and the amount of time the child spends with each parent.
Will child support be automatically modified when the new law comes into effect on July 1, 2017?
Arin Fife: The new law going into effect on July 1 does not automatically change the terms of child support and any agreement or order that is already in existence. The change in the law alone is not enough to warrant a change or modification of a judgment on this previous order. However, changes in circumstances aside from just the new law can make a case for changing a child support order. This would include any significant changes in income, finances, or perhaps the need of a child.