Articles Posted in Child Custody

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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However, in 2000, the U.S. Supreme Court acknowledged that what was once considered a “traditional” family was outdated and inaccurate.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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In many custody disputes, allegations of abuse against children are thrown around.  Sometimes, people use this simply as a means of mudslinging to gain an upper hand in the court’s eyes against the opposing party.  However, other times, even the slightest indication of abuse can reveal a Pandora’s Box, leading to a full blow investigation to ensure a child’s safety.  In DuPage County, allegations of abuse against children are taken very seriously, and the County specifically set up an investigative body to handle such allegations.

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In 1987, Illinois’ first (and the country’s fifth) Children’s Center was opened in DuPage County.  In 2001, it was incorporated into the DuPage County Office of the State’s Attorney.  The DuPage Children’s Center is distinct from schools and local police departments, and it aims to uncover and collect evidence regarding abuse of children to find the truth.  Once the DuPage Children’s Center has corroborating evidence, it will present a case to the Assistant State’s Attorney for review and possible charges.

 

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Divorce litigation affects children, especially if they are living in a contentious atmosphere.  In an effort to minimize the impact of the legal process on children, counties in Illinois have implemented programs and procedures to keep children out of the courtroom, and facilitate resolution of parenting issues in domestic relations cases.  A handful of these programs are summarized here.

 

Mediation

 

Counties in Illinois are required to offer mediation programs for divorcing parents.  If parents are unable to reach an agreement regarding parenting time and the allocation of parental responsibilities, and so long as there are no extenuating circumstances (such as domestic violence), the court will send parents to mediation to try to resolve these issues outside the courtroom.  Judges will often remind parties in a divorce that parents know their family situations and needs best.  As parents, they should take advantage of the opportunity to reach a resolution that is in the best interests of the family, rather than delegating that decision a third party outsider.

 

The mediator does not represent either party and does not give legal advice.  Rather, the mediator’s job is to facilitate conversation between the parties, and hopefully aid them in resolving the matters related to their children.  The mediator will the issue a report stating whether the parties reached a full resolution, partial agreement, or were unable to reach an agreement.


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Under Illinois law, child support may be modified upon a substantial change in circumstances.  Normally, a job loss is considered a substantial change in circumstances which would warrant a modification of child support, but sometimes it isn’t.  This post discusses two cases, and the reasons why the courts reached different outcomes.

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Scenario #1:  Father is working full-time and bringing in most of the family’s income.  He and mother decide they are going to get a divorce, and she is awarded the majority of allocated parenting time with the children.  Mother is seeking child support from father, who is an engineer.  Due to a combination of his unreliability and misconduct at work, he is fired from his job during the pendency of the divorce.  He was paying child support of $2,500 per month on a temporary basis during the pendency of the case.  Now, after a few months, he is unable to find new employment and is living with his parents.  Mother is seeking child support from father, but his position is that he should not be ordered to pay child support because he is not working.

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Fertility treatments and agreements for the purposes of preserving fertility down the road have become more commonplace in recent years.  When disputes arise regarding who has control of the embryos, Illinois courts will look to contract law to resolve them.

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In the case of Szafranski v. Dunston, the parties, Jacob and Karla, began dating in 2009. By mid-March 2010, Karla was diagnosed with cancer and learned that her chemotherapy treatments would most likely lead to infertility. In an effort to create pre-embryos (fertilized eggs which have yet to be implanted into the uterus) with Karla’s eggs and Jacob’s sperm, Jacob and Karla entered into a verbal agreement to undergo in vitro fertilization (IVF) together.  As a result, 3 pre-embryos were created and frozen.

 

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Most people know a neighbor, friend, or family member who provides full-time care for a grandchild.  In fact, grandparents raising grandchildren is a growing trend among families in the US.  According to the AARP, nationwide nearly 5.8 million grandchildren live with their grandparents, and it is estimated that over 2.5 million grandparents are raising their grandchildren.  Almost 1 million children live in a home where a grandparent and neither of the child’s parents are in the residence.

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According to the 2010 U.S. Census, 99,783 grandparents in Illinois are householders who are responsible for the grandchildren that live with them.  7.8 percent of children in Illinois reside with their grandparents in situations where the grandparents are the householders. 109,939 children in Illinois reside in such households where the grandparents are responsible for the children.  Of those, 35,583 Illinois children have no parents in the home at all.

In some circumstances, grandparents are obtaining custody or adopting their grandchildren.  However, the more common scenario is that grandparents are being appointed as legal guardians over their minor grandchildren.

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Circumstances can arise when, for various reasons, a child is not in the possession of one or both of his or her parents and certain non-parents might seek to obtain an allocation of parental responsibilities (formerly known as “custody”) and parenting time (formerly known as “visitation”).  In Illinois, non-parents can have a difficult time attaining their goals, unless certain specific conditions are met.  Generally speaking, section 601.2 of the Illinois Marriage and Dissolution of Marriage Act provides that proceedings related an allocation of parental responsibilities (custody) are allowed:

  1. By a parent filing a petition for divorce or legal separation;
  2. By a parent filing a petition for allocation of parental responsibilities;
  3. By a person other than a parent, only if the child is not in the physical custody of one of his or her parents;
  4. By a step-parent, if certain circumstances are met; or
  5. When one of the parents is deceased, by a grandparent who is a parent or step-parent of a deceased parent, if certain conditions existed at the time of the parent’s death.

This post focuses only on situations that arise under number 3 above, when a non-parent seeks an allocation because the child is not in the physical custody of one of his or her parents.

Imagine that Kourtney and Scott are never married and have three children together.  Five years ago, Scott was thrown in jail for crashing his Lamborghini while highly intoxicated, and eventually convicted.  While Scott was in prison, Kourtney and the children moved in with Kourtney’s mother, Kris.  Kourtney and the kids lived at Kris’ house on and off for the next year or so.

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