Articles Posted in Visitation

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Would an Illinois family law court restrict a parent’s ability to smoke cigarettes or vape around a child?  Specifically, can a court limit a parent’s time with his or her minor child to prevent the exposure to second-hand smoke or vapor?  The answer to this hypothetical question is hazy at best.

 

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First, there’s the data about the harm caused by smoking.  According to the Centers for Disease Control and Prevention, over 34 million people in the United States smoke tobacco products. That’s about 14% of all adults in the nation.  While the health effects associated with one’s personal use of tobacco are well-established, ranging from cancer to arthritis, it is further believed that approximately 2.5 million nonsmokers have died from health-related problems caused by exposure to secondhand smoke since 1964.

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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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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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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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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?

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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.

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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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