ILLINOIS DIVORCE LAW BLOG

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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.

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Excerpted from the Huffington Post from an Article by HP writer Nancy Fagan (The Divorce Reporter) on attachments that continue after divorce. http://www.huffingtonpost.com/nancy-fagan/cut-the-marital-cord-alre_b_1018650.html

Michael Roe’s comments immediately below:

Nancy, a very interestin­g and legally sound article. Illinois has been a part of a trend toward requiring judges to do all that they can to terminate the connection­s with former spouses, once they are divorced. However, as there is also an expressed trend toward joint and shared parenting and permanent maintenanc­e (also known as alimony), in reality, the cord does not get completely severed in divorce. In Illinois, divorced parties of long term marriages are bound to each other through their duty to co-parent and through years of maintenanc­e and support payments.

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Divorce is a very difficult life transition. Divorce is known to be one the highest stress events of a person’s life, especially when the divorce was unexpected or involves dramatic changes to the children in the marriage.

My job as a divorce and custody attorney is to help my clients navigate the divorce process as successfully as possible. Divorce is a difficult process, but it should not be a “war.” Wars, as we all know, end with casualties on both sides, cost a lot of money, and leave wounds that do not heal.

What basic advice can I give to help divorcing parties manage the stresses of divorce?

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In my divorce and custody practice, I have always been an advocate for shared parenting plans for the right set of parents. When both Father and Mother are good and loving parents, there is no reason to cause one parent (typicaly Dad) to suffer the stigma of having “visitation” with his own children. The more opportunities that each parent has to parent their children allows the children to grow into better adolescent lives and behavior patterns. Children of divorce that experience two loving parents in their lives tend to do best long term.

A recent study from Denmark supports shared parenting:

The Copenhagen Post: “While equal custody arrangements became increasingly common in Denmark over the past decade, in 2007 they became the rule of law when a unanimous parliament passed the Parental Responsibility Act and made equally custody the default.

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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.

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facebook%20image.jpgIt’s rare to run across someone that does not have a Facebook or Twitter account. While few teens these days exist without a Facebook account, Facebook has been especially popular among adult users, allowing the account holder to share family stories, photographs, and to reconnect with long lost classmates.

Facebook has also begun to have some interesting interplay with divorce and custody litigation. See this recent story about how a Facebook account was used by divorcing parties in a high conflict divorce case: http://www.theglobeandmail.com/life/the-hot-button/the-most-bizarre-use-of-facebook-in-a-divorce-case-ever/article2054594/

I observed only last week a hearing in one of our Illinois courts that involved an interesting (and probably not uncommon) use of Facebook. The Wife was on the witness stand testifying to her relationship, or lack thereof, with a gentleman whom the Husband claims is a paramour that has had contact with their couple’s minor child. Wife denied any real relationship, and denied that the alleged paramour had ever been in their home.

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The article below appeared in a recent Huffington Post. The article explores a study investigating patterns of father-child contact following divorce. Left out of the study seems to be the inclusion of fathers who benefit from a shared parenting agreement, whereby father and mothers share the parenting of the children and agree to live reasonably proximate to each other. In my practice, shared parenting agreements are primary goals of my approach to managing custody cases for fathers. In other cases, I am seeking outright primary custody for my Dad clients. Good and devoted fathers must have the same rights as good mothers in divorce. The study below, however, adopts some stereotypes of nonresidential fathers , but the study itself is interesting and worth reporting here:

By: Robert Hughes, Jr., University of Illinois at Urbana-Champaign, Professor of Human Development

The general assumption about fathers following divorce is that they gradually have less and less contact with their children. Everyone seems to know some exceptions, but most generally think this is what happens. But what really is the case?

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Divorces cost too much. I have practiced long enough in Illinois to understand that the process in the Illinois Court system of divorcing and reaching custody determinations takes too long, and costs the divorcing parties too much. My fees for divorce cases, including those that reach trial are always a fraction of that of my opponent’s fees, and I work hard to keep costs down for my clients, but I still feel that the present system promotes delay, stress and cost for families. Why is this so, and how can all of us in the system work to change it?

First, the process itself is inefficient. Divorce cases are filed, and the courts set lengthy periods in which the opposing parties appear to set case management schedules. Then there is the endless march of discovery: Marital Interrogatories and lengthy and cumbersome Requests to Produce Documents, subpoenas of bank and credit card records that the parties won’t produce voluntarily, depositions, motions, hearings over temporary issues: all of this activity which is billed to the client by the hour.

If the case can’t settle, there is trial preparation. Finally, months later, the trial date, whereupon the judge sets a pretrial conference in chambers and the lawyers and judge work toward settlement with the judge’s input. The lawyers then go out into the courtroom hallway and work with their clients under the pressure of the trial setting and try to settle the case.

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Virtual Visitation and Out of State Removal of Children

“Virtual visitation” is a term that is gaining relevance in Illinois divorces. It refers to using online video programs like Skype to create a visual and audio connection by which physically distant parents can connect online with their children.

A recent New York divorce case granted a mother’s request for permission to move with her children to Florida, despite the fact that the children’s father would continue to live in New York. As a condition of the removal order, the mother had to agree to allow the children to visit with their father via Skype, an Internet service that allows for live videoconferencing. The New York judge noted that economic conditions justified the move, as the parents’ house was underwater, employment prospects were dim, and the mother had supportive family in Florida.

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