Articles Posted in Child Custody

An issue that often arises during or after a divorce or parentage case is the relocation of the children.  The parents have separated, and each has their own home and parenting time with the kids.  Then, the parent with whom the children reside most of the time (the residential parent) decides that he or she would like to relocate with the kids. Is it permissible?  What duties are owed to the other parent?  What if the other parent objects?

relocation

The law used to distinguish between relocating the children within Illinois and moving out of state.  Those distinctions have been eliminated.  The term “relocation” is now defined in Section 600 of the Illinois Marriage and Dissolution of Marriage Act as:

 

  1. A change in residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence;

 

  1. A change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from his or her current residence.

 

  1. A change of residence from the child’s current primary residence to a residence outside the borders of the State that is more than 25 miles from the current primary residence.

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Until January 1, 2016, Illinois law addressed disputes regarding child-related issues in divorce and parentage cases in terms of “custody” and “visitation.”  The term “custody” referred to both decision-making authority regarding the children (called legal custody), and where the children lived the majority of the time (called residential custody).  The term “visitation” referred to the time the parent who did not have residential custody had with the children.

custody and visitation

If parents were required to consult with one another before making decisions regarding a child’s education, religious upbringing, extracurricular activities, and healthcare, they were said to have “joint legal custody.”  If, however, one parent had decision-making authority over these areas, he or she was said to have “sole custody.”

 

If the children resided with one parent a majority of the time, that parent was said to have “residential custody” of the children.  The other “non-custodial” parent had “visitation” rights.  However, if the parents had reached an arrangement wherein both had time with the children exactly 50% of the time, then the parents were said to have “split custody” or “shared custody.”

 

As of January 1, 2016, that terminology has changed.  Illinois no longer recognizes the terms custody or visitation whatsoever when referring to a parent’s rights. Those legal concepts no longer exist, though the term “visitation” does survive in the context of third-parties, such as with regard to “grandparent visitation.” Having said that, those words have been commonly used for so long that many people, attorneys and judges among them, will have a hard time eliminating those words from their vocabulary.

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Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979.  Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update.  For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.

 

The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed.  The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.

divorce word cluster

The following is a brief summary of some of the important changes to the Act:

 

Grounds:

 

Presently, a person seeking a divorce must allege “grounds” for the divorce.  Most commonly, people cite “irreconcilable differences” as the reason for a divorce.  To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months.  The must also prove that the marriage is over and not salvageable.  The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme  and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.

 

The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences.  Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.

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In most child custody, adoption, and foster care placement cases, Illinois state law governs.  However, Congress passed a federal law in 1978 called the Indian Child Welfare Act, also known as “ICWA,” which creates a different burden of proof and set of standards for Native American children in child custody, adoption, and foster care placement cases.  ICWA sets forth the guidelines for removal of an “Indian child” from his or her Indian family, which imposes a significantly higher burden.

 

indianchildwelfareact

ICWA guidelines are not necessarily focused on the best interests of the child. Rather, ICWA was passed “to protect Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”

 

The federal government recognized the large-scale break-up of Native American families, as Native American children were systematically being removed from their homes and placed with families who had no connection to the particular Native American culture.  Essentially, Congress passed this law to protect the culture and family unit of Native Americans, setting a higher burden for removal of Native American children from their families.  ICWA also has a jurisdictional component such that if ICWA applies to a case, it may be transferred out of the state court and into tribal courts.  The tribal courts are perceived as a preferable venue for Indian families determined to combat the removal of children.  Finally, ICWA allows for the appointment of an attorney for the Native American parent, something not typically provided for in custody cases, aside from juvenile abuse and neglect proceedings.

 

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There is a certain irrationality inherent in contentious divorce and child custody cases. Many people going through such an experience might label their spouse as mentally unstable. If such mental instability is an actual psychological condition, as opposed to mere name calling, it can be particularly relevant when custody of minor children is in dispute.

When it comes to determining a person’s ability to parent minor children, a parent’s mental health may be under high scrutiny. Illinois Supreme Court Rules provide a mechanism through which a party to a divorce or child custody proceeding can call into question the opposing party’s mental health and request that he or she submit to an examination by a mental health professional.

mental health exam

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A man named Abel, his wife, Betty, and their son, Charlie, have lived in Illinois for the past five years. One winter morning, as Abel is walking out of the house to go to work, he notices that Betty is wearing an exceptionally garish Hawaiian shirt and looks like she’s ready for a tropical vacation. When Abel asks her about it, she tells him it is a Hawaiian-themed day at work. Puzzled because she works at Target, he says goodbye anyway and heads off to work. When Abel arrives at home later that night, he finds a note posted to the door that reads: “By the time you read this, your son and I will be halfway to Fiji. We’re not coming home and I never want to see you again.” Frantic, Abel contacts the local police to see what he can do to get his son back home. The police take a report for kidnapping, and tell him he should hire an attorney.

hawaiian shirt

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a treaty which seeks to protect children from abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The central purpose of the Hague Convention is to “discourage parents from crossing international borders in search of a more sympathetic forum” in which to litigate custody issues. Marriage of Krol and Kubala.

While many countries throughout the world have signed the Hague Convention treaty, some have not. Click here for a list of countries that have signed the Hague Convention. Referring to the scenario above, Fiji has not signed the treaty. The process to obtain the return of a child differs depending on whether the country has or has not signed the treaty.

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Adoption is one part of family law that doesn’t get much press, perhaps because it isn’t as contentious as the division of assets and debts in a divorce or as emotional as a hotly contested custody battle.  Whatever the reason, adoption is typically an area of lightness amidst the often challenging aspects of other family law issues.

Celebrate-Adoption

However, for an adoption to be legal and proper, parents must take necessary steps. An adoption petition must be filed, and the court must enter a judgment of adoption, terminating the biological parents’ rights and finding that the adoption is in the best interests of the child.

 

There is an exception to the rule, called “equitable adoption,” which typically arises in probate cases where there is a contested will. In the case of DeHart v. DeHart, the Supreme Court of Illinois was faced with determining when equitable adoption should be recognized in Illinois. The DeHart Court found that “equitable adoption theory should be recognized under the right circumstances even in the absence of a statutory adoption or a contract for adoption.” The Court further held that requirements for an equitable adoption claim are: (1) a plaintiff must prove intent to adopt; (2) a plaintiff must show that the decedent acted consistently regarding such intent in forming a “close and enduring familial relationship” with the plaintiff.

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