Before January 1, 2016, it was common for parents to seek “visitation” with their child(ren) as part of a divorce. But now, with the updated version of the Illinois Marriage and Dissolution Of Marriage Act covers parenting time (IMDMA) in effect since January 1, 2016, there is no such thing as visitation any longer.
Instead, parents are granted “parenting time” with their child(ren).
As you can imagine, there is a difference between the two and it isn’t just the change of the term. In this article, we’ll discuss what the old law was, how the new law works, and relevant information you should know as to how parenting time is determined by the court in your divorce proceeding.
The Old Divorce Parenting Law in Illinois
In the past, visitation time meant creating a parenting time schedule that determined when each parent would have the child(ren). Typically, one parent would be granted “residential custody” of the child(ren) and the “non-custodial parent” (i.e. the parent that the child(ren) were not living with), would enjoy visitation.
In past cases, the court would typically determine which parent should be the residential parent based on the best interests of the child(ren). Commonly, non-custodial parents would enjoy alternating weekends, some time during the week, and alternating holidays with the children.
However, none of this is in effect any longer. Instead, we have “parenting time.”
The New Child Visitation Law in Illinois
There is one significant change with the new law: There is no such thing as “residential custody” any longer. Instead, both parents enjoy parenting time with the child(ren) to ensure that both spouses play an integral role in raising the child(ren).
This doesn’t change the fact that most spouses will agree that the child(ren) will live primarily at one residence for stability purposes. However, the idea that one parent “wins” custody and the other may only “visit” their child(ren) has been eliminated in favor of a more joint idea of parenting and raising the child(ren).
What Factors Does a Court Consider to Determine the “Best Interests” of the Child(ren)?
According to the IMDMA, there are 17 factors the Court considers important in determining the best interests of the child(ren):
- Each parent’s preferences;
- Each child’s preferences, depending on their ability to express these preferences maturely (depending on their age);
- Time each parent spent as a caregiver during the 24 months preceding the divorce or since birth if the child is under age 2;
- Prior agreements made by spouses with regard to caretaking;
- Relationships and interactions between children and parents;
- How well the child(ren) have adjusted to their home, school, and community;
- The mental and physical health of both parents and the child(ren);
- The child’s/ren’s needs;
- The distance between the parent’s homes as well as how easy transportation will be;
- If a restriction on parenting time, for any reason, should be made;
- The presence of physical violence or the threat of physical violence made by either parent;
- How willing each parent is to put the child(ren) and his/her/their needs before their own;
- How well each parent promotes a positive relationship between the other parent and the child(ren);
- The presence of abuse;
- Whether either parent is a sex offender or living with a sex offender;
- Military deployment considerations; and
- Any other factors the Court finds relevant to allocate parenting time properly.
In many cases, parents are able to agree on a parenting time schedule for the minor children and the Court does not need to take such extensive steps to finish the process. However, it’s important to remember that the Court may need to step in to resolve disputes between spouses who cannot agree, meaning these 17 factors will be accounted for.
When is Parenting Time Restricted?
If parents come in with one pressing question when they meet with their Naperville divorce lawyer, it’s this: “Am I going to see my children?” If you’re wondering the same, you aren’t alone.
This is a legitimate concern that parents, especially those who will not be living with their children, are worried about in their divorce. You should have peace of mind knowing that your children can’t be taken away for no reason. In fact, most couples share parenting time and do so equitably so the children spend time with both their mother and father.
However, in some cases, restricted parenting time is a necessity.
4 Factors That Influence Parenting Time Restrictions
Under the Illinois Marriage and Dissolution Of Marriage Act, there are four reasons why the court may either restrict parenting time or modify an order to restrict parenting time, amending your original Allocation Judgment.
These four factors include:
- Abuse, neglect, or abandonment of the child;
- Abusing or allowing abuse of another person that had upon impact on the child;
- The use of drugs, alcohol, or any other substance in a way that interferes with the ability to perform caretaking functions with respect to the minor child; and
- Persistent continuing interference with the other parent’s access to the child, except for actions taken with a reasonable, good-faith belief that they are necessary to protect the child’s safety at the time.
With this in mind, it’s obvious that your child won’t simply be taken from you. Rather, you must exhibit behavior that endangers the child, be using substances that prevent you from caring for the child, or interfere with your ex-spouse’s parenting time purposely and without concern for the child’s safety.
Courts typically amend Allocation Judgments after a change in circumstances or if conduct begins that wasn’t present at the time the Judgment was entered. If you follow your Judgment closely and respect your ex-spouse with his or her parenting time, you will not need to worry about seeing your child.
What to Expect as the Non-Residential Parent
Children are a foremost concern in most divorce cases. Issues relating to child support as well as parenting time, or what was formerly known as visitation, can be contentious between soon-to-be former spouses.
Although there is no such thing as the primary residential parent under Illinois law any longer, the child(ren) in any divorce case will still primarily reside with one parent. Not surprisingly, this leaves the other spouse wondering what kind of visitation time they will receive with their children, especially with them living with their former spouse.
As you can imagine, the logistical arrangements of any case will vary depending upon the parents, their work schedules, the child(ren), and other related factors. However, it’s important to understand that there are visitation rights you’re entitled to as a “non-residential parent.”
Typical Parenting Time Schedules for Non-Residential Parents
Every suitable parent is entitled to parenting time with their child(ren). However, all decisions the Court makes in your case regarding the child(ren) will be related to his, her, or their best interest. As such, it’s important to keep in mind that splitting parenting time 50/50 doesn’t often occur, especially because children need stability and a home as they grow up.
This isn’t to say that you will not receive ample time with your child(ren). In many cases, parents who do not live with their child(ren) receive alternate weekend visitation (meaning every other weekend from Friday evening until Sunday evening) and two weeknights (often from around 4 p.m. to 7 p.m., depending on everyone’s schedules). This gives parents who aren’t living with their child(ren) the ability to spend quality time.
It’s important to note that you will also receive parenting time on holidays as well as vacation time during the summer. As such, you will never be an “absent” parent as you may fear, no matter where your children are living.
There are Some Issues That May Affect Parenting Time
If there are other important factors at play in your case, for example an issue that makes one parent an unsuitable caregiver, parenting time may suffer.
The judge in your case will make decisions that are in the best interest of the children so if, let’s say, one parent is addicted to drugs, he or she will not enjoy much (if any) parenting time with the children until he or she resolves the problem. This is an extreme example, but one that is important to note should a similar scenario be present in your case as well.
Address Your Parenting Time Concerns With Lawrence R. Surinak Ltd.
If you’re planning on filing for divorce or your spouse has filed and you need an attorney that will guarantee ample parenting time with your child(ren), Lawrence R. Surinak Ltd. can help. We specialize in divorce and family law and have done so for over 35 years to resolve a wide range of issues related to children and beyond.
If you’re concerned about parenting time after divorce or other issues and would like to speak to Larry concerning other issues, take advantage of your free 30-minute consultation by contacting us at 630-470-9990 or requesting your consultation online. We look forward to speaking with you and easing your concerns regarding all relevant issues in your case.