Articles Posted in Child Custody

On January 14, a new law went into effect in Illinois that allows judges to order a “right of first refusal” for parents who share joint custody of their children. The right of first refusal (ROFR) means that any time one parent cannot care for the children during his or her scheduled period of possession or custody, that parent must first offer the other parent the right to take the children during that time. “[I]f a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children.”

The right to have the possession of one’s child or children when the other parent is unable to provide direct care can be important to the noncustodial parent. In many cases, one parent has only alternating weekends and midweek dinners with the children, and the chance to have more parenting time when the custodial parent is away on a trip or at a seminar is invaluable.

Prior to this year’s new law, judges had discretion in allowing these rights of first refusal. In my experience, there have been judges that would outright refuse to allow them in parenting agreements, believing that these clauses in agreements only invited more disputes about whether one parent’s seminar was long enough, or whether the babysitter hired for a two hour movie was a violation of the ROFR. Some judges just didn’t want to open the door to a feature of a Parenting Agreement that would invite more litigation.

Childrensrightscouncil Illinois In fact, according to university researcher Dr. Emily Douglas, in “Mending Broken Families: social policies for divorced families”, the overwhelming majority of divorcing fathers have wanted at least equal parenting time with their children, or sole custody — and this has been consistent since the first surveys were undertaken in the early 1960s. Additionally, research by esteemed clinical psychologists like Dr. Joan B Kelly and others have substantiated that the persistence of Every Other Weekend “de-parenting” or “a-parent-dectomies” , applied almost entirely only to fathers, has resulted in children becoming emotionally detached, as ‘their fathers were turned into uncles’. In fact, it was partially due to the research of people like Dr. Kelly, that a direct link was established between the 30% detachment rate between divorced dads and their children, and the Every Other Weekend ‘visitation’ schedules.

My practice has seen an increase in the number of interstate custody disputes, in part due to the increased mobility of families as well as due to age old issues of parents wishing to return to their “home state” with their children once the marriage begins to break down. The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), a national uniform act, was enacted in Illinois on July 8, 2003, and took effect on January 1, 2004.1 It was incorporated into Illinois law to end custody jurisdictional disputes between states, to promote cooperation between states in determining custody issues, and to enhance the ability of states to enforce custody orders expeditiously.

I receive calls frequently from parents who have either fled the state of Illinois to avoid domestic violence and a bad marriage, or from parents left behind in Illinois once a divorce commences and the opposing spouse wishes to leave Illinois and run “home” with the children to his or her family out of state.

Illinois law disfavors parents leaving the state and taking the children with them. Illinois has long had a tradition of requiring Illinois parents in divorce to stay in Illinois and raise the children here with both parents. Our removal statute creates factors that determine whether a party may lawfully “remove” the child or children from Illinois to reside permanantly in another state.

Many Illinois divorce cases commence with a battle over the custody of the minor children. Because Illinois has not adopted Presumptive Shared Parenting, both parents are pitted in battle against each other for the parenting rights to their child or children. While Illinois’ refusal to adopt shared parenting, to my mind, is unhealthy and inappropriate, arguments in favor of keeping the antiquated “winner-loser” formula for custody in Illinois do not stand the test of time nor reason.

There are four general arguments against shared parenting that are typically advanced.

(1) Custody should go to the historic “primary caretaker,” which most typically has been the mother.

I found a most interesting blog this morning, by Sophia van Buren, that discusses her role as a non-custodial parent. In her view, being the non-custodial parent and a mother has created issues and challenges that many women in divorce do not encounter. Part of what she comments on is the stigma associated with being designated the non-residential parent. Here in Illinois, the stigma is worse, as parents who do not have “primary residential custody” are awarded “visitation.” In Illinois, some parents, usually the Dads, become “visitors” of their own children; a tragedy.

Ms. van Buren discusses why she became the non-residential parent:

Not only was it up to me to “fix” and clean up the mess my ex had made of our family, home, and finances, but I couldn’t let my personal feelings get in the way. There was too much work to be done. My husband could not be counted on for help. His tremendous indiscretions at work had lost him his job and there was no indication as to whether or not he would ever be able to the take care of our family again financially. Common sense told me that, since he couldn’t do it, I would have to. As the mother, it was up to me to put my feelings aside and simply make sure I could feed, shelter, clothe, protect, and insure our children.

I receive calls from parents contemplating divorce in Kane County and DuPage County about joint custody in Illinois. Many good parents tell me that “I just want joint custody,” though many times I feel that people do not understand what joint custody means in Illinois.

In general, Illinois Joint Custody means that the parents agree to make major decisions regarding the child or children together, such decisions as schooling, medical care, and religious practices. In Illinois, the concept of statutory joint custody does not address, at all, the idea that the parents will share the parenting time with the children.

As I have written before, Illinois still has an archaic, and in my view, unfair approach to custody. Unlike other states that have adopted “presumptive shared parenting,” Illinois still requires that the Court determine a “residential parent” and a parent that has “visitation.” Most often, Mom becomes the residential parent, and Dad is relegated to the status of a “visitor” of his own children. Illinois still allows for the stress, financial hardship, and animosity that is engendered by forcing good parents to contest each other for the role of “primary residential parent.”

There are a number of states that have adopted presumptive joint custody, or in other words, these states presume in a divorce that absent other evidence, the court should find that joint legal and shared physical custody is in the child’s best interest. Illinois is not one of these states, unfortunately. Recently, the Illinois Legislature’s appointed Family Law Committee has been exploring a number of changes to Illinois’ Marriage and Dissolution of Marriage Act. Is presumptive joint physical custody coming to Illinois? Is Illinois emerging from the Dark Ages of custody law? It does not look like it.

The word from colleagues is that the adoption of presumptive joint custody in Illinois is not going to occur. The reasons for this failure are not due to the efforts of many good lawyers to seek progressive changes to Illinois law. There are some lawyers, however, for whom positive change for families and children is not a good thing. Unfortunately, progressive changes do not look like they are on the horizon in Illinois.

I have consistently advocated for joint legal and physical custody. Of course, there are exceptions; for example, I just completed a trial where my client was properly awarded sole legal and primary physical custody. Yet, as a general proposition, good, competent, loving parents, both Mother and Father, should share the parenting of their children after divorce. The psychological studies reveal that presumptive joint custody is in the best interest of the children and the parents.

I have written previously about joint custody, and what this term means in the context of Illinois custody litigation. If one thing is clear, it is certain that many lawyers, parents, and even some judges do not have a clear view of what Illinois Joint Custody entails.

Put simply, joint custody awards require the parents to make major decisions about the children together. In the event of a dispute, a means for solving the dispute is implemented. And, the joint custody order should call for periodic review, so that as the children age, their needs can be met with flexible mutually agreed changes, such as parenting schedule changes.

One aspect of joint custody that I feel is not often considered is the requirement that joint custody be ordered when a risk of alienation of the non-custodial parent is a risk. Some judges feel, following In re Marriage of Marcello, that they cannot order joint custody if the parents do not get along, and there is a breakdown of communication. What I have observed in many cases is that the primary caregiver parent, who many times may be the temporary custodial parent, simply becomes difficult, argumentative, or at worst, alienating, with the hope that the non-custodial parent is cut out of the decision making for the children.

Taking Daughter To Church May Violate Court Order Dad Says Half-Jewish Child Should Be Exposed To Christianity, Too by Chicago Tribune Reporter Mike Puccinell at http://bit.ly/8CLYdi

A compelling story about a Father and his child has appeared in Illinois media this week. The story concerns a Christian Dad who is in a high conflict divorce and custody case with his Jewish wife.

“I have been ordered by a judge not to expose my daughter to anything non-Judaism,” Joseph Reyes said. “But I am taking her to hear the teachings of perhaps the most prominent Jewish Rabbi in the history of this great planet of ours. I can’t think of anything more Jewish than that.”

By BRADLEY BROOKS, Associated Press Writer Bradley Brooks, Associated Press

RIO DE JANEIRO – A New Jersey father has his hopes pinned on Brazil’s chief justice, praying he will regain custody of his son after a five-year court battle in time to spend the holidays with the boy – in the United States.

David Goldman also said he would allow 9-year-old Sean’s Brazilian relatives to visit with his son if he wins the case.