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New Illinois Divorce Law Says Goodbye Custody, Hello Allocation of Parental Responsibilities

As of January 1, 2016, Illinois law no longer references “custody” in its statutes. Instead “allocation of parental responsibilities” replaced the term “custody”. Just like custody, allocation of parental responsibilities refers to decision making, and parenting time is decided separately of parental responsibilities. In addition, the term “visitation” has been replaced with “parenting time” to reflect the reality that parents exercise parenting time with their children and do not just “visit” with them. In sum, courts now allocate “parental responsibilities” (formerly custody) and “parenting time” (formerly visitation).

Parental responsibilities are broken out into categories reflecting significant decision-making responsibilities with respect to a child. Decisions about education, health, religion, and extra-curricular activities can be decided by both parents or solely assigned to one parent. For example, if one parent is a teacher and the other a doctor, a court might allocate the decision-making responsibility for education to the teacher and for healthcare to the doctor; or, both parents may jointly decide all significant issues. Ultimately, the statute still applies the same standard under prior law – that the court allocates decision making responsibilities according to the child’s best interests.

In addition, the law now provides a requirement for the submission of parenting plans. Both parents, within 120 days after service or filing of a petition for allocation of parental responsibilities, must file with the court a separate or joint proposed parenting plan. This was not a requirement under prior law. The time period for filing a parenting plan may be extended for good cause shown or can be excused in the case of the Respondent’s default. The parenting plan must contain at a minimum information meeting fourteen statutory criteria, which includes, but is not limited to:

Allocation of significant decision making responsibilities;
Provisions regarding parenting time;
Mediation provision;
Rights regarding access to records;
Designation of the parent who will be denominated as the parent with majority of parenting time for purposes of other statutes;
Child’s residential address for school enrollment purposes only;
Each parent’s residence address and phone number and place of employment and contact information;
Requirement that a parent changing his or her residence provide at least 60 days’ notice;
Provision that each parent notify the other of emergencies, health care, travel, and other significant issues regarding the child;
Transportation arrangements;
Provisions for communications between child and parent during other parent’s time;
Provisions for resolving issues regarding a parent’s future relocation, if applicable;
Provisions for future modifications of parenting plan, if specified events occur;
Provisions for the exercise of right of first refusal, which means that if a parent is unable to see the children during his or her parenting time—due to illness, travel, etc., they must ask the other parent if he or she would like to have the children before hiring a babysitter or making other arrangements; and
Any other provisions that address the child’s best interests or that will otherwise facilitate cooperation between the parents.
See 750 ILCS 5/602.10 regarding additional details and requirements of parenting plans.

If the court does not approve a joint parenting plan, it must make express findings justifying its refusal to do so. Where no agreement is reached between the parties, the court must conduct a hearing or trial to determine a parenting plan that maximizes the child’s relationship and access to both parents pursuant to the best interests of the child. The addition of the requirements for parties to complete a parenting plan early in the case, will assist the parties and the court in determining if there are any disputed issues and what they are as soon as feasible.

Overall, the changes in the law were intended to eliminate the idea of a winner-take-all litigation process that was inherent in the former custody model, and to reflect the reality that today, in many, if not most families, both parents are employed outside of the home, and both share the financial and emotional responsibilities of parenting. Furthermore, the new terminology and laws were designed to foster a more amicable and thereby shorter process.

Erin B. Bodendorfer is an associate at Katz & Stefani.

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