Illinois – There’s a lot of chatter in the Illinois family law bar. If you’re about to divorce or file for parentage, then be prepared for everything you’ve ever heard about custody to change. More amendments to the Illinois Marriage and Dissolution of Marriage Act are coming on January 1, 2016, and literally “custody” itself is being removed from mention. You read that correctly: Illinois is doing away with “custody” and “visitation.”
Senate Bill 57, which goes into effect on January 1, 2016, makes significant changes to family law in Illinois. Among the biggest changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) are the changes to child custody determinations.
The End of “Child Custody”
Prior to Senate Bill 57, the IMDMA allowed for custody to be allocated either solely or jointly. When a parent received sole custody, the other parent was entitled to child visitation, or set time to spend with his or her children. In addition, the law distinguished between legal custody, which gives the parent the right to make decisions regarding the child, and physical custody, which refers to where the child lives. In order to make a custody determination, courts took into account the best interests of the child by considering relevant factors. Moreover, the statute required the court to consider a variety of factors when determining the best interests of the child.
Allocation of Parental Responsibility
According to Senate Bill 57, rather than making custody determinations, the court will be making determinations regarding parental responsibility. The law defines parental responsibility as including two factors: decision-making responsibilities and parenting time. The concept of “decision-making responsibilities” replaces the concept of legal custody and allocates the right to make decisions in four different areas to the parents. A parent may be entitled to make decisions in all four areas of the child’s life, or the court may determine that each parent is responsible for different areas. The statute requires parental responsibility to be allocated regarding decisions about the child’s education, health, religion, and extra curricular activities.
Determination of decision-making responsibilities is to be based on the best interests of the child and the court is required to consider relevant factors, including those outlined by the statute. The court is required to consider:
- The wishes of the child;
- The child’s adjustment to his or her home, school and community;
- The mental and physical health of all individuals involved;
- The ability of the parents to cooperate;
- Any prior agreement or conduct between the parents with regard to decision-making;
- The parents’ wishes;
- The child’s needs;
- The distance between the parents’ homes;
- The ability of each parent to support the child’s continued close relationship with the other parent;
- Physical violence against the child;
- Abuse in the home;
- Whether or not one parent is a sex offender; and
- Any other relevant factor.
Similarly, the concept of parenting time replaces the concept of physical custody or visitation. In order to make a determination with regard to parenting time, the court is tasked with considering the child’s best interests; however, the list of factors for the court to consider is slightly different. In addition to the factors used when allocating decision-making responsibility, the court must consider:
- The amount of time each parent has spent taking care of the child during the previous two years;
- The interaction and relationship of the child with his or her parents or siblings or any other person who may affect the child’s best interests; and
- Whether a restriction on parenting time is appropriate.