Whether parents have equal parenting rights or one parent is considered the primary parent, most divorcing and divorced parents will experience issues related to child custody, child support, and parenting time. In this podcast, DuPage County divorce lawyer Chuck Roberts discusses some of the common issues regarding child custody and parental rights and responsibilities in Illinois, including: whether a custody order from another state is enforceable; how a parent can protect their child from an abusive ex; how to increase your chances of being awarded primary parenting rights; the age a child can decide which parent they want to live with; and much more.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Chuck Roberts, Divorce Lawyer
With more than 30 years of experience in family law, Chuck Roberts has gained a reputation in the community for his ability to handle complex divorce cases, including contested child custody cases and cases where there are complex financial issues. He is considered to be the go-to suburban solution for professionals, business owners, sports figures, and their spouses to help navigate the challenging waters of the divorce process. To learn more about Roberts and his law firm – Momkus McCluskey Roberts LLC – visit www.momlaw.com.
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Read the Transcript of this Podcast Below.
Illinois no longer uses the terms custody and visitation in divorce cases. What’s the new terminology and how does it apply?
The word custody has been replaced by the legislature with the new concept of allocation of parental responsibilities. It’s probably a better description of the process that we actually undergo. We determine how the important significant decisions for kids are going to be made. The word visitation has been replaced in the statute with the concept of parenting time; it’s probably also a better description of what actually happens.
It’s still the same basic concept, and that is, how are we going to make these significant decisions for the kids? The day-to-day issues have always been more straight-forward, including what color shirt is the youngster going to wear, what are they going to have for lunch, and whether they can have a friend play over at their house after school. Those types of day-to-day decisions are routinely made by the parent who’s exercising parenting time at the time of the decision. It’s the significant decisions that have led to more substantial problems over the years, and those significant decisions fall into three principal categories, which is health care, education, and religious decisions.
I do a tremendous amount of work in my own practice as a Guardian ad Litem, where I’m appointed by the court to help the court determine what is in the best interest of children in situations where their parents are undergoing a transition. The children are best served by both parents having a voice in those important decisions, and I think the new terminology that’s been adopted embraces that concept very much. It’s a welcomed change, and although it’s still early in its application in Illinois, it seems to me that the new descriptions are being embraced and are doing good and substantial justice for the kids.
What are the different types of parental rights and responsibilities in Illinois?
The first of the three principal areas that we have to make decisions in is education. That’s going to be the choice of schools, the choice of tutors, are the kids going to receive a public education from a public facility or are they going to be enrolled in a private school. The education decisions are always significant ones. Health care can include things like medical decisions, obviously, but also dental care or physiological needs and treatments for the kids. Religious upbringing is oftentimes a significant dispute between the parents. The court will often look, as it attempts to sort the religious issues out, at past conduct of the parents. Many times in Illinois, the court will say that as far as the religious upbringing is concerned, if it’s your weekend to exercise parenting time, then it probably makes sense for the child or the children to go ahead and practice whatever faith that particular parent enjoys on their weekend. It keeps the court out of having to make those kinds of decisions. We’ve picked up a fourth area, with some of the recent amendments to the statutes, and that includes extracurricular activities.
How many activities are the kids going to be involved in at one time; are they going to be involved in extracurricular activities at all; how are we going to choose which parent is going to be responsible for taking the kids; can you force the other parent to take your child to an extracurricular activity on a day that he or she is enjoying parenting time. There’s a lot of significant decision-making that goes on, and the legislature has really facilitated the opportunity for both parents to have a voice in those significant decisions.
At what age can a child decide which parent they want to live with?
You often hear people talk about maybe 13 is the magic age, or 12 or 11 in other states. Illinois doesn’t have a magic age. It’s a sliding scale in Illinois, and as a child ages and matures and has the ability to appreciate his or her environment and to understand their circumstances that they are presented with, then that child has an increasing voice in the determination. For example, if we’ve got a three-year-old or four-year-old, that child really isn’t going to have much input at all into the decision as to where they are going to spend the majority of their time. But on the other hand, by the time a child is 17 years old, unless there is something fundamentally flawed in their reasoning, they ought to have the ability to essentially make that determination. As a child ages and matures, they have an increase in voice, and at 18 they have absolute legal right in Illinois to make that decision.
Can you explain what a custody order is? If somebody has a custody order from another state, is it enforceable in Illinois?
A custody order, we now refer to as allocation judgment. That document is going to talk about the parenting schedule that the parents are going to follow. Where is the child or the children going to be on any given day? How are we going to divide up the holidays, whether they be school holidays, legal holidays, or religious holidays? How are we going to make those important decisions that we talked about a few minutes ago in those four different categories? What happens in the event that the parents aren’t able to make a joint decision, they’re unable to reach an accord as to what should happen; how are we going to make that determination? The goal of the allocation judgment is to give the parents a road map as to how to make these decisions, what to do in the event they’re unable to make the decisions, and to give some structure to the upbringing of the child or the children. If you have such a document from another state, that document is going to have to be enrolled in Illinois for it to be enforceable here; that requires instituting a court proceeding. The judgment from the other state is actually recorded in Illinois when the case file is opened. The parent who is not seeking such enrollment gets served with actual process and has an opportunity to file an appearance with the court, and once all of those steps are undertaken and the Illinois court adopts the foreign judgment, then it is enforceable here as though it had been rendered originally in Illinois.
If the parent with primary parenting rights is preventing the other parent from exercising visitation with his or her child, can the second parent stop paying child support?
No. By law, the two things are totally unrelated. Child support is an obligation of the parent who’s ordered to pay it, and it has nothing to do with the conduct of the parent who receives the child support. The lack of parenting time or a lack of what we used to called visitation does not excuse the payment of child support.
What if the parent is generally concerned about having his or her ex spend time alone with the children, and perhaps there is been a history of abuse or drug addiction or alcoholism? What can the concerned parent legally do to protect his or her children?
The proper way to address those types of concerns is to bring the matter to the attention of the court. That’s done by the filing of a petition, which might seek to limit the parenting time of the other parent or control or restrict the activities of the other parent undertaken in the presence to the children. That can sometimes, as a petition, result in the appointment of, for example, a clinical physiologist to conduct an evaluation of the parent to try to determine what is actually going on. It might result in the appointment of a Guardian ad Litem for the child or the children that’s in our area. An attorney who’s appointed as the child representative or an attorney for the child acts as the eyes and the ears of the courts — someone who conducts an investigation and determines whether or not the assertion by the concerned parent has merit and whether or not you really should result in an interference in the other parent’s ability to parent their child. There are a lot of different mechanisms that the legislature has provided for the courts in such situations — matters that we routinely deal with and that actually come up of very frequently.
I’m assuming that you have suggested people who might have those sort of issues would seek help of a lawyer who has lots of experience in the area of family law, because it could be a bit tricky to try and navigate that on your own, wouldn’t it be?
It’s really true, and especially when it comes time to start the interaction of the litigant or the parent with the Guardian ad Litem or another attorney. Those are situations where you really need the guidance of somebody who’s been through this process a considerable number of times. It’s not something that the average litigate is going to be able to go navigate on their own.
How can a parent increase his or her chances of being awarded primary parenting rights in Illinois?
There is really no overnight solution to that situation. If you consider a 12-year-old child and you’ve got one parent who has always been working hard outside the home and has not really been around a lot, hasn’t been terribly involved with the youngster’s activities, and suddenly shows up for a month and says, “OK, I’m ready to take on primary parenting responsibility,” you can certainly visualize how that isn’t going to suddenly work.
Even if the parent is able to fool the judge, Guardian ad Litem, lawyers that are involved, and physiologist that might get appointed and the physiatrist, that parent isn’t going to be able to fool the children that are involved. If the Guardian ad Litem or the evaluation physiologist does an interview with the kids, the truth is going to come out and it’s going to be fairly apparent that this is a parent who came to the game probably a little bit too late. The best answer to that questions is that each parent needs to be involved with his or her children to the extent possible throughout their upbringing, and that takes some of the pressure off at the time that maybe they are going to undergo a transition in their family situation.
Is what the courts are looking for the best interests of the child?
It’s a decision as to what is in the best interest of the children. There are a number of factors that go into that determination, and the wishes of the child or the children is certainly one of the considerations, but it’s not the only consideration.
What if one parent removes the children from the state or from the country for that matter, without the other parent’s consent? What can the other parent do to have the children returned, and even if they get a court order – which I’m assuming they would, how can they go about enforcing that?
We see that fairly often. There are two situations that will come up: one situation is where one of the parents has removed the child from Illinois but is still in the United States. The first step is to go to court to obtain an order directing the return of the child or the children to the jurisdiction of the Illinois court. The parent seeking an enforcement of that order will then have to take it to the state where the child or the children are actually located and seek enforcement there. Those situations, while they may take a little bit of time to resolve or handled, are fairly straight-forward without any unusual complexity once the child is located in the foreign state. Where it gets a little bit trickier is if the parent has removed the child from the United States, and then we got two different situations that can arise. One situation is if the child is located in a foreign country that is a member of the Hague Convention. The Hague Convention is an international treaty that a number of different countries have entered into, and the Hague presents a specific protocol as to how to go about the return of the child who is being wrongfully detained in the foreign country.
That enforcement effort is undertaken in the country where the child is actually located. The most difficult of all is when the child has been taken to a country that is not a member of the Hague. We’ve been through some of those situations at my law firm. We’ve been successful in obtaining the return of children to the United States in those circumstances, but those circumstances are certainly the most difficult, the most problematic situations. Needless to say, if you are faced with a situation like that, you’re going to want to find yourself a lawyer who has been through that. It’s not the time to have a lawyer who’s going on a learning curve and then wants to learn how to do it. Those are very difficult, very sophisticated pieces of litigation.
How can a parent help his or her lawyer make a case that he or she should be awarded primary parenting rights?
The place to start with that is to actually hire a lawyer who actually does this as a substantial portion of their practice. You need to be represented by someone who has been through this a number of times, who’s familiar with the court, who’s familiar with what the specific judges are looking for that the case is going to be in front of. By hiring the right lawyer upfront, you significantly improve the odds of a favorable outcome. Once you got the right lawyer in place, there are a couple of things that the parent will be asked to do that will be of assistance. The first is to document their activities. There should be a daily diary that’s kept. The lawyer will express his or her preferences as to what form that’s going to take: it might be electronic, it might be pencil and paper. It’s going to include different kinds of activities, different things that the children are involved in, the interaction between the child or children and the other parent.
There is a lot of information that the parent is going to be asked to keep track of, and the lawyer will give a direct instruction to the client as to what form that needs to take. Of course, the other thing that probably goes without saying, but it seems to be something that comes up pretty often, and that is you really need to be candid with whomever it is that you hired or represented. None of us are perfect as parents, we all have our own shortcomings; those shortcomings need to be candidly disclosed to the attorney who’s going to represent you. That person can help you not only deal with whatever shortcomings may have existed but make sure that those kinds of situations don’t arise again in the future and prepare to deal with what undoubtedly is going to be raised as an issue in the case. Candor between the attorney and the client is just critically important if there is going to be a successful outcome.
If there’s conflict between parents, can they still share equal parenting rights?
Amazingly enough, they can. Probably every situation in one context or another is high conflict; if it wasn’t high conflict in the first place, they probably wouldn’t be undergoing a divorce or a transition in their relationship. Interestingly enough, most parents are able to successfully put all of those differences of opinion aside and successfully co-parent at least as it relates to the big-ticket items, so those issue that we talk about earlier — health care, religious upbringing, extracurricular choices, education, those things that are really going to fundamentally impact the upbringing of the children. No matter what levels of dispute the parents have between themselves personally, they often are able to successfully set those things aside and make the joint decisions together. My experience is that’s really the best thing for almost every child.