Michael Doherty of the Children’s Rights Council of Illinois was kind enough to write me this weekend to say that his members have been following Illinois Divorce Law Blog. Here is an excellent article about shared parenting in which the Children’s Rights Council was quoted:
Sharing Custody By: Sarah Rupp http://www.crisp-india.org/articles/147.html
“Do what’s best for the kids.”
I spoke with one of the committee leaders from the Illinois Legislature’s Family Law Committee today on the progress being made to reform Illinois’ antiquated custody and support statutes.
I have been writing for years on the need for Illinois to join the 21st century, and revise its Dissolution of Marriage Act to reflect statutes that exist in other states that create, for example, a presumption of joint legal and physical custody.
A legal presumption of joint custody acts to establish both parents as presumptively fit to share the parenting of their children. Presently in Illinois, mothers and fathers fight over who will “win” the custody of the child(ren). States that have enacted presumptive joint custody take the fight out of these cases. These states, of course, leave open the possibility that one parent may challenge the fitness of the other to have shared custody, but at the every least, unlike Illinois, these states do not presume that one parent is to be a winner, and the other a loser, in the custody war.
I was involved in a child custody matter recently that was becoming difficult to settle, for a number of reasons. I represented the Dad in the case. One of the reasons for the impasse was the wife’s refusal to consider joint custody. I had prepared a detailed Joint Parenting Agreement that was a healthy and proper plan for the parents and the children of the marriage, It was rejected.
Here’s what occurred. Shortly before trial, I took the wife’s deposition. In the deposition, I began to inquire as to her reasons for refusing a joint parenting agreement, pointing out to her examples as to how she and my client had communicated and worked together on recent medical and school issues involving the children.
What developed in the deposition was an appreciation that she had never accurately understood what joint custody in Illinois meant. She told me that she refused to share the time 50/50 with the children with her then-husband, but she offered that she was completely OK with making him a part of every decision in the children’s lives She affirmed that he is a good dad, and should be equally involved in the major decisions.
Illinois attorneys and the Illinois legislature are now studying changes to Illinois’ Marriage and Dissolution of Marriage Act. One of the goals of the review is to, perhaps, bring Illinois into the 21st Century by reforming the way we resolve custody issues, as well as revising the language of custody. What changes would you like to see in our Illinois dissolution and custody statutes?
I’d certainly like to see the concept of “custody” relegated to the dustbin of history. Mom and Dad are parents…why not enact legislation that defines parenting as a shared relationship? Isn’t it almost always true that the non-custodial parent hates to have what is called “visitation?” When does a parent become a visitor? How many custody wars have been fought over who would be relegated to “visitor” status?
Minnesota attorney and mediator Molly Millet discusses below changes that Minnesota made in 2007: “The biggest change in Minnesota that has been helpful is the perception of “custody.” Before, parents would fight over the custody label – who got custody and how that related to child support. Now, it’s “parenting time.” Now, parents are focusing on time with their kids, rather than a legal label.It also takes both spouses’ incomes into account. If you earn twice as much, you will pay more. It didn’t make any sense before. Let’s say Mom worked and Dad lost his job. He was paying child support, and the calculation didn’t in any way take into account Mom had always earned more than Dad. Also before, expenses were split 50-50 regardless of who made what income. Now, in most cases, it’s split proportionally.”
Shared parenting laws introduced by the Howard government in 2006 do not guarantee divorced fathers the right to a 50-50 time split with their children because (as the article argues) such an arrangement is not always in the best interests of the children.
Instead, the legislation requires the Family Court to “consider” whether equal time with both parents suits a particular child, and can decide that in some cases it does not.
The Australian last week reported that fathers are overwhelming staff at the new Family Relationship Centres, where all separating parents must now go before approaching the Family Court, demanding to know why they can’t have a 50-50 time split with their children.
1. Talk to your children about your separation.
Studies show that only 5 percent of parents actually sit down, explain to their children when a marriage is breaking up, and encourage the kids to ask questions. Nearly one quarter of parents say nothing, leaving their children in total confusion. Talk to your kids. Tell them, in very simple terms, what it all means to them and their lives. When parents do not explain what’s happening to their children, the kids feel anxious, upset and lonely and find it much harder to cope with the separation.
2. Be discreet.
While divorce proceedings may pose a great burden upon parents, they often have a significant affect upon children as well, who may not fully understand what is happening in the family’s transition. Parental separation can fundamentally shift a child’s world view, requiring careful steps to ensure that children are able to soundly cope with changes the divorce brings. It is crucial that parents remain focused upon helping children transition during the process:
1. Encourage open communication from your children. Although the complete scope of the process might immediately escape children, it’s important that you take time to allow a child to express his or her feelings about the event. This is a way in which you can both come to understand outside viewpoints, as well as providing you with an opportunity to reach and explain the situation in a manner that resonates with the child. If you have multiple children, it’s important to speak to them both individually and collectively, as each child is likely to have a different, personal response to the events unfolding, depending on their age and personality.
2. Ensure that all children have a stable social safety net throughout the process. Since the fundamental role of the family is to provide a safe setting in which children can learn and grow, it’s important that one continue to provide this level of support even during parental separation. Ensure that children are in a safe environment and remain outside any legal or argumentative environments that might surround the divorce; if you understand with your spouse around children, remain friendly and amicable, independent of your internal feelings. Always reach out to your broader, extended social network so that children feel comfortable – allow them to spend time with friends, relatives and counselors so that they have feelings of stability in spite of the changes around them.
There are at least five (5) states that have passed legislation regarding virtual visitation, or internet visitation: Utah, Wisconsin, Texas, Missouri and Florida. Other states are sure to follow, and through my firm’s nonprofit Fathers4Justice.net Illinois, I’m working to develop a legislative bill to propose making Virtual Visitation part of the IMDMA. Michael Gough, a pioneer virtual visitation technologist, has developed a program that we discussed in Chicago some years ago. See http://www.internetvisitation.org/
Internet visitation is being implemented, primarily for the purpose of allowing a parent more access to his or her child while the child is not in their care; it is not meant to replace one-on-one visitation. Think of it as a supplement to in person time with your child(ren).
Virtual visitation allows for the parent and child to communicate on a more regular basis, allowing for the parent and child to see and hear one another, which can be more effective than the standard telephone call. It seems that those adverse to virtual visitation are most concerned with parents using it as a means to replace typical in person visitation, which it is not meant to do.
Co-Parenting defined:
Co-parenting enables children to reap the benefits of being raised by both parents in the event of a divorce. The archaic belief that primary custody should always be awarded to the mother is in most jurisdictions not followed. Today, it is widely acknowledged that many good fathers are just as qualified to raise children as good mothers. Therefore, to benefit the children and save the divorcing couple thousands of dollars in litigation fees, thoughtful divorce lawyers encourage their clients to settle custody issues by agreeing to joint legal and physical custody: co-parenting.
Frequently, co-parenting plans will divide the time children spend with each parent relatively equally, providing each parent an opportunity to raise their children and enjoy spending large amounts of time with them as they grow up.
The State Of Iowa has on its books a Shared Parenting statute. which establishes shared parenting as the presumptively preferred means of custody in Iowa.
Here in Illinois, litigants often times fight custody “wars” over which parent will “win” the custody of the child(ren). As a lawyer and aggressive advocate for my clients, I enjoy a strongly contested case, but the fight over the custody of children is a battle that often should not be fought. Divorce creates enormous personal stresses in families, and the impact of divorce on children is well known. Having parents fight wars for the time with the children seems to me unhealthy, unnecessarily painful, and uselessly costly to families.
There are cases where joint physical custody is not appropriate. The Courts are well prepared to determine these cases. However, it would be a welcome event to see Illinois evolve out of the custody “dark ages,” into a more enlightened view toward statutory shared parenting. This would take the fight out of the parenting part of the case.
Below is a proposed Federal statute for shared parenting, from an Iowa shared parenting advocacy group:
Title of Bill:
An Act Relating to Physical Care of Children in Domestic Relations
Be It Enacted By The United States Congress
1 Preamble: An Act relating to joint physical care of children in domestic relations and
2 establishing a uniform federal law creating a rebuttable presumption that a request for joint 3 physical care is in the best interest of the child.
4 5 SECTION 1: This act may be cited as, “Shared Parenting bill.”
6
7 SECTION 2: In any domestic relations proceeding, the states shall award joint physical 8 care to both joint custodial parents upon the request of either parent during the proceedings 9 on the initial dissolution petition or during the proceedings on a modification of the original 10 custody order.
11 12 SECTION 3: A rebuttable presumption exists that a request for joint physical care by either 13 parent is in the best interest of the child, the burden of proof to rebut the presumption rests 14 on the party denying that joint physical care is in the best interest of the child, and such 15 party shall demonstrate that joint physical care is not in the best interest of the child by clear 16 and convincing evidence.
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