In a dissolution in which a marital child is involved, issues of parental responsibility and parental time – previously called child custody and visitation rights – are often the most contentious and hotly disputed. Being with your child is typically near the top of every parent's list of what they want in a dissolution, making it difficult to compromise on the issue to create a solution that everyone can live with.
Unfortunately, these legal issues are going through a rapid evolution. On January 1, 2016, the newly rewritten Illinois Marriage and Dissolution of Marriage Act came into effect, throwing some of the processes surrounding child custody into disarray.
Because the issue is such a hot one in so many dissolutions, and because there is so much uncertainty in the field since the law was changed, it is all the more important to have a solid family law attorney, like those at Benassi & Benassi, on your side. Doing so can ensure that your interests are protected, getting you the parental time and responsibilities that both you and your child need and deserve.
Changes in Illinois Family Law
Family law in the state of Illinois went through a huge change when, on January 1, 2016, the newly rewritten Illinois Marriage and Dissolution of Marriage Act came into effect. Some of the new changes are just semantic – the words “custody” and “visitation” have been taken out, and replaced with the phrases “parental responsibilities” and “parenting time” – but other changes are much more substantive, and can have a huge impact on the outcome of your dissolution.
The main purpose behind these changes was to ensure that the focus of custody and visitation disputes remained on the child, rather than on the parents. Using words like “custody” and “visitation” led to divorcing couples referring to whether they “won” or “lost” custody, which made the process more competitive than courts and legislators wanted it to be.
Additionally, awarding one parent “custody” and the other mere “visitation rights” made one parent feel superior to the other in their parenting ability and role, despite the fact that both still had joint custody, and therefore a say in the child's future.
Together, these issues made it more difficult for couples to come to solutions regarding how they would care for their children after the dissolution, with both sides wanting to “come out on top.”
From Child Custody to Parental Responsibilities
One of the main changes to the new Illinois Marriage and Dissolution of Marriage Act is the replacement of "child custody" with "parental responsibilities."
Under Illinois' old laws, divorcing parents of a child used to be awarded joint or sole custody. If both parents were given joint custody, then they would both have an equal say in important life decisions surrounding their child on all issues, from their child's education to their health.
The new laws, however, assign parental responsibilities instead. The dissolution court is put into a position where the judge can allocate decision-making responsibilities to either parent on certain topics, as the judge deems to be in the child's best interests. This can result in a ruling where each parent has absolute say in certain areas, such as how a child's religious upbringing will be handled, but no say at all in other areas.
The allocation of parental responsibilities is a fact-specific determination that looks to all of the circumstances in each case, making it important to have an experienced family law attorney to put forward the best legal argument to get the optimal outcome.
From Visitation Rights to Parenting Time
The new Illinois Marriage and Dissolution of Marriage Act also drastically changes how "visitation rights" are arranged, replacing them with allocations of "parenting time."
The old setup gave residential custody, also called primary physical custody, to one of the child's parents, and then assigned the other parent a set of visitation rights that detailed when they could be with their child.
The new law, however, radically changes all of this, instead going with a far more flexible determination. Now, judges in dissolution courts make a hyper-fact-specific determination as to how often each parent can be with their child, based on the best interests of the child. This determination looks to all of the circumstances surrounding the case, making the need for an experienced attorney even more crucial to ensuring that the optimal outcome is obtained.
The Best Interests of the Child
For both parental responsibilities and parental time, the best interests of the child are the touchstone that courts use to make a decision; however, the best interests of the child are difficult to determine. Under the new law, the best interests of the child include numerous statutory factors that the courts are allowed to consider, including:
- The wishes and needs of the child,
- How well the child adjusts to his or her home, school, and community,
- The health, both mental and physical, of everyone involved, and
- The wishes of the parents.
However, these are just the statutory factors. A court has the discretion to look to any other factor that it deems important or appropriate. Therefore, having an attorney on hand to argue your case is crucial for a successful outcome.
Of course, these decisions do not need to be put before a dissolution court for a resolution. If you and your spouse can negotiate and come to an amicable agreement on the issues of parenting time and parental responsibilities, then you can create a written parenting agreement that resolves some or all of these issues. Doing so allows you to avoid the cost and stress of a dissolution court proceeding, though typically requires a family law attorney to create and help negotiate.
The family law attorneys at Benassi & Benassi understand that going through a dissolution is stressful, and can help you get the parental responsibilities and parental time that you and your child need to get through this trying time. Contact us online or at (309) 276-0601.