As a lead family law attorney at Allison & Mosby-Scott in Bloomington, Michelle R. Mosby-Scott limits her practice to family law and regularly represents clients in dissolution of marriage, child custody and child support. Allison explains some of the details in regards to custody in this podcast.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Michelle R. Mosby-Scott Owner & Lead Attorney at Allison & Mosby-Scott
Selected for membership in the The National Advocates: Top 100 for the state of Illinois, Michelle is considered one of the best family lawyers in the state, proud to serve the families and individuals within the community of illinois for over 20 years.
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Read the Transcript of this Podcast Below.
What factors do Illinois courts consider in determining allocation of parental responsibilities?
In determining the allocation of parental responsibilities, the judge will examine a series of factors. There are several factors used to determine who will have decision-making authority for a child. There are also several factors used to determine the parenting time schedule a parent will have with a child. These factors are generally referred to as the best interest factors.
If there is a lot of conflict between the parents, is joint custody still a possibility?
Yes, joint decision-making authority is possible in cases where there is a lot of conflict between the parents that it impairs their ability to cooperate with one another. Whether such an arrangement involving joint decision making is appropriate, would be determined on a case by case basis. Further, such an arrangement may work for some parents despite the conflict, whereas it might not work for other parents simply because of communication skills or the personality that a parent has.
What types of decisions must parents share in a joint custody situation?
Decision-making authority covers significant decisions in a child’s life, such as healthcare, education, extracurricular activities, and religion. Each of the significant decisions can be shared or jointly made by both parents. There is however, no requirement that the decision-making be joint. Further, if the parents agree, the court can order other significant decisions in a child’s life to be made jointly even if some of the decisions in the child’s life could be made solely by one parent.
If the children split their time between two homes, is it always 50/50? What are the most common types of arrangements for children’s living situations post-divorce in Illinois?
If children split their time between two homes, the parenting schedule is not always equal. At a minimum, a parent will generally have parenting time one evening during the week and every other weekend, typically Friday to Sunday. At a maximum, each parent may have equal parenting time with the children. The equal parenting time division can be based on a week on or week off schedule. It can also be based on a 2-2-3 split which is Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and then an alteration of the weekend. Further, any arrangement for parenting time between the minimum and maximum could be arranged either by agreement or court order. A parenting time schedule can vary from case to case.
Can primary parenting rights be taken away from the parent to whom they were originally assigned and awarded to the other parent? Under what circumstances?
Yes, the allocation of parental authority is always subject to change in the future. It can be changed based upon the best interest of the child or children of the party. Regarding decision-making, the ability to make a decision regarding a significant decision in a child’s life can be modified every two years, if requested, or sooner is there is a risk of endangerment. Regarding parenting time, the schedule can be modified at any time. In order to modify either decision-making or parenting time, there must be a substantial change of circumstances that has occurred since the most recent agreement or court order was made. In the event the court finds that there has been a substantial change of circumstances, then the court will look at the same factors when the initial agreement or court order was entered. The court must further find that modification of decision-making or parenting time is necessary to serve the best interest of the child or children.
Is it possible for both parents to have equal rights and decision-making powers regarding their children – whether or not the children split their time between both parents’ homes?
Yes, even if the parenting time schedule is not equal, both parents may still share decision-making authority. Decision-making and parenting time each have different factors that the court looks at when determining what is in a child’s best interest. Although many of the factors are the same, the court has the ability to order a specific arrangement for decision-making and a specific arrangement for parenting time. Whether those arrangements are the same or different will depend on the facts of each case.
At what age can a child choose which parent he/she wishes to live with?
In Illinois, there is no age that a child can choose which parent they wish to live with. The court can consider the preference of a child, but that preference does not determine where the child will live. It is one of many factors the court will consider. Depending on the age of a child, the court could give more weight to a specific preference, but, again, that preference does not determine where the child will live. The court can also consider the maturity level of the child, in whether or not if the child’s preferences are based upon the influence of one parent or another, or whether the child understands the consequences if the court were in fact to make a decision based upon the child’s desire of where he or she wants to live.
According to Illinois law, a child cannot choose which parent they wish to live with until the reach the age of majority, which is 18.
How is custody and child support decided when dealing with children of unwed parents?
If a child is born to unwed parents, the Illinois Parentage Act directs the court to determine allocation of parental authority and child support in the same manner as married parents. As to the former, the court will make that determination based on the best interest of a child. As to the latter, currently, child support is based upon the net income of the party who does not have the majority of parenting time. The court can deviate from the statutory guidelines for child support. Further, how child support is calculated is changing effective July 1st of 2017. It is uncertain at this time how courts will apply the new statute in regards to evaluating what the appropriate level of child support will be at that time.
If one ex-spouse exercises visitation with his/her kids, can the custodial parent move with them to another state? Under what circumstances?
Yes, the parent with the majority of parenting time can move a child or children to another state. To do so, one of two circumstances must exist. First, the parent who does not have the majority of parenting time could agree to the move. If there is an agreement, a modified parenting plan will be entered that reallocates parenting time to accommodate the move out of state. Second, if there is no agreement, the parent with the majority of parenting time would need approval from the court to relocate to another state. In determining whether to allow relocation, the court is to look at specific factors for relocation and the court must determine that relocation is in the best interest of a child or children. In Illinois, prior to 2016, a parent with the majority of parenting time only needed the court’s permission to remove a child from the state. Effective January 1, 2016, a parent with the majority of parenting time now needs the court’s permission to relocate with a child if such a relocation would move the child more than fifty miles from their current residence if the parent resides in downstate or central Illinois.
How can a parent increase his or her chances of being allocated the majority of the parenting time and decision making in a dissolution case in Illinois?
The best way a parent can increase his or her chances of being allocated the majority of parenting and decision making is to make decisions that are based upon the best interest of the child or children in their family.
Oftentimes parents can become so immersed in regards to what their needs are in dissolution cases, they forget to consider the needs of their children. A court when considering allocating the majority of parenting time will consider which parent is better able to serve the needs of their child above and beyond their own individual needs. Additionally, the court will consider which parent has been responsible for the primary care of the child prior to the dissolution action being filed.
Specifically, the Illinois Marriage and Dissolution of Marriage Act in Illinois suggest the court should look at who was caring for the child as a primary parent in six months prior to the petition of dissolution of marriage being filed. The court can also evaluate whether or not those responsibilities and primary care of the children was shared or allocated equally in the parties.
If a litigant is looking to increase their chances of being allocated the majority of parenting time and decision making in a divorce case, it is imperative that they focus on making decisions in the best interest of the children, and that they communicate with their spouse in a way that is cooperative and productive.
It is also important that the parent seeking the majority of the parenting time and decision making has the ability to create an environment wherein their child is encouraged to have a positive and healthy relationship with both parents, and not just the primary parent.