Articles Posted in Child Custody

“I will sue you!” is a common phrase meant to inform someone that you will seek legal recourse in order to settle your dispute in court. In the alternative, “I will meet you ‘on the field of battle where I will rend [your] souls from [your] corporal bodies’” is not a common phrase, nor is it a means by which people typically settle their disputes. However, one Kansas man was mad enough to invoke an age-old form of dispute resolution against his former wife and her attorney in a post-divorce case, which was, of course, a motion for trial by combat.

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On January 2, 2020, David Ostrom, 40, of Paola, Kansas, filed a motion for trial by combat with the Iowa District Court in Shelby County alleging, in part, that his ex-wife, Bridgette Ostrom, 38, “destroyed (him) legally.” Such legal destruction being resolved by the possibility of death would seem hardly reasonable to the common layman. However, “to this day, trial by combat has never been explicitly banned or restricted as a right in these United States,” Mr. Ostrom would go on to say that trial by combat was used “as recently as 1818 in British Court.” Not surprisingly, shortly after filing his motion, Mr. Ostrom was quickly faced Ms. Ostrom’s Motion to Suspend Visitation and Motion for Psychological Evaluation.

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In general, the purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is to resolve custody disputes by directing the court with “continuing and exclusive jurisdiction” the jurisdiction to modify and enforce custody disputes that may arise between two different states.  While each state has its own child custody statutes, the UCCJEA governs which state’s child custody laws will control in the event of a conflict involving a custody or enforcement proceeding where more than one state’s laws might apply. In 2004, Illinois adopted the UCCJEA, along with 48 other states.   Massachusetts is the only state that has not adopted the it.

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Probably most importantly, the UCCJEA indicates that the child’s “home state” should resolve all custody conflicts. The Act defines the child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period” (emphasis added).

 

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In a divorce case involving children or in parentage case, it is usually pretty easy to figure out what each of the parents wants. What often isn’t clear is what the child wants, and how much weight the court should give to a child’s expressed wishes.

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The Illinois Marriage and Dissolution of Marriage Act (IMDMA), which governs child-related issues arising in divorce and parentage cases, sets out a series of factors a court should consider in making determinations related to the allocation of decision-making responsibilities (i.e., “custody”) and parenting time (i.e., “visitation”), as well as other child-related issues.  This list is commonly referred to as the “best interests of the child” factors.

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In Illinois, the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), protects communications made between a client and a therapist. Generally, when an individual begins therapy, the therapist’s first obligation is to explain that anything the client says to the therapist will remain confidential. However, this may not always be the case for children whose parents are simultaneously involved in a custody battle, and where a Guardian ad Litem (GAL) has been appointed to investigate and recommend to the court what is in the best interest of the minor child.

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In 2017, the Illinois legislature added section 607.6 to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Given how recently section 607.6 was added, there is not much case law interpreting its provisions. Under this section of the statute, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties. Perhaps the more controversial portion of 607.6 can be found in subsection (d). Section 607.6(d) provides, “all counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.”

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Whether it be maintenance to or from your current or former spouse, or support for your child(ren), your income is relevant in divorce and parentage proceedings. The fact that you are the person obligated to pay or the person who receives money from another does not change the need for your income to be defined before an order for support is entered.

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“But what is my income? I am on social security benefits, or I run a business, or my income is constantly in flux. Surely, you cannot expect me to truly define my income. I’m special,” you say. Thankfully for you, the good and wise people of the Illinois legislature have defined what income is, and also what it isn’t, and they’ve done so in a way that isn’t confusing or contradictory at all.  Rather than use a single definition for all family law purposes, they instead have defined income in three separate-yet-related statutes: the Uniform Interstate Family Support Act (“UIFSA”); the Income Withholding for Support Act, and the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).

 

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Last year, the Illinois legislature introduced Illinois House Bill 4113, which was the most politically controversial family law bill in a generation. It proposed a statutory mandate requiring a 50/50 shared parenting time schedule in divorce and parentage cases, except under limited circumstances.  The legislation was supported by father’s rights groups, among others, who believe that Illinois law contains an unwritten bias in favor of the mother when it comes to parenting time decisions.  They believe that the way to effectively address this bias is with a bright line rule.

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At the same time, the legislation was vigorously opposed by a wide variety of individuals and organizations which, according to the Chicago Tribune, included the following:

  • The Illinois State Bar Association
  • The Chicago Bar Association
  • The Kane County Bar Association
  • The Du Page County Bar Association
  • The Lake County Bar Association
  • Illinois Chapter of the American Academy of Matrimonial Lawyers
  • Archdiocese of Chicago Domestic Violence Outreach
  • Jewish Child & Family Service
  • The Illinois Coalition Against Domestic Violence

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In society today, how we define what makes up a family is extremely diverse. Many children today are born and raised in unmarried or single-parent households. Often, extended family members, including grandparents, aunts, uncles, and adult siblings, raise and even adopt children. Courts previously made rulings and upheld laws in family cases based on what a “traditional” family looked like and to protect children who grew up in families outside that perceived norm.

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However, in 2000, the U.S. Supreme Court acknowledged that what was once considered a “traditional” family was outdated and inaccurate. In the 2000 case of Troxel v. Granville, Justice O’Connor noted, “The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.”

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Some may rejoice, and some may cringe at the notion that parents might be required to metaphorically “split the baby” under Illinois House Bill 4113, which is currently sitting in committee.   Effectively, if passed, House Bill 4113 would represent a dramatic change in how parenting time is allocated among parents.

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The applicable statute currently in place, 750 ILCS 5/602.7, requires parenting time to be allocated according to the best interests of the child. As set forth in the current statute, there are numerous factors that are considered in determining what the best interests of the child are. The courts consider facts and evidence relevant to the best interests to shape a parenting time schedule for the parents to follow.

 

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The best interest of the child, as defined by Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act, governs parenting time in divorce or parentage proceedings. In some cases, if it has been proven that a parent has abused alcohol or other substances, it is not uncommon for the court to impose certain restrictions to ensure that a parent’s substance abuse issues will not endanger the children. For example, if a father has problems with alcohol abuse, the court may order him to take a breathalyzer test before parenting time to ensure that the children are not being placed in a bad situation.  When a parent’s substance abuse involves illegal drugs, the court’s concerns are even greater, as there is a strong legal presumption that children should not be present while crimes are being committed.

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However, Illinois’ legalization of medical marijuana has complicated the issue. While legal in Illinois, medical marijuana is still not condoned by the federal government. As such, medical marijuana use presents new questions, particularly if the non-using parent alleges that the other parent’s medical marijuana usage endangers the children.

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You have just received shocking news that the mother or father of your child has passed away. Suddenly, you are in the position to take a more prominent role in your child’s life by having your child live with you, possibly indefinitely. Who is stopping you from asserting this role? Are the child’s grandparents holding you back? Is a step-parent preventing you, or are you yourself hesitant to change your own lifestyle in this situation?  This post explores Illinois law on the subject.  Please note that many of the cases on the topic use terms like “custody,” “custodial parent,” and “non-custodial parent.”  The 2016 statutory amendments replaced those terms with “parental responsibilities” and “parenting time.”

 

To begin the legal analysis, the courts will imply constructive parenting time and parental responsibility in favor of the surviving parent, because it is legally presumed that the surviving parent’s right or interest in the care, custody, and control of the child is superior to that of any third person who may otherwise attempt to assert their rights to the child.  Marriage of Archibald.

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