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.
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.
Frequently, parenting time schedules are determined based on the parents’ work schedules, and where the children go to school. Since most people work Monday through Friday, and have weekends off, parenting schedules typically involve the children spending alternating weekends with each parent. During the week, parenting schedules typically award one parent the vast majority of the time with the children. It is usually the parent who is responsible for getting the children to and from school each day.
House Bill 4113, should it become law, would create an automatic presumption that it in the child’s best interest to award equal time to each parent. It would also shift the burden of proof to a parent who wants something other than equal time to prove that his or her proposal is in the child’s best interests.
House Bill 4113 would also make it more difficult to restrict a parent’s right of parenting time. Under current law, it is presumed that each parent has a right to parenting time with his or her child. In order to restrict that right, the current law requires proof by a preponderance of evidence that parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
House Bill 4113 would raise the legal burden of proof for restricting parenting time to “clear and convincing evidence.” It further would require the court to issue a written ruling explaining the decision to restrict parenting time, citing specific facts and conclusions of law. One draft of HB 4113 further raised the legal bar to require a finding that a parent was legally unfit, by the standards of the Illinois Adoption Act for termination of parental rights. In short, either version of House Bill 4113 would make it significantly more difficult to restrict a parent’s time with a child.
Many parents have argued for equal parenting time in the past, and some have even made it work. However, equal time is not always feasible in light of the realities that most parents must deal with on a day-to-day basis, and to date, the Illinois courts have recognized this. Under the current law, a parent who wishes to have equal time bears the burden of proving that it would be in the best interests of the child. One such example of this occurred in the case of Marriage of Perez.
In Perez, the Appellate Court of Illinois acknowledged that courts have traditionally viewed 50/50 shared parenting schedules with caution. The court noted that the usual concerns of giving the children some residential permanency, as was the case in Marriage of Hacker. However, the court stated there were other factors which should be considered. Among other factors the Perez court also considered were
- the capabilities of each parent;
- the parents’ cooperation and ability to reach shared decisions involving the best interests of the child;
- the parents’ proximity to each other, to school, connections, and community ties;
- the parents’ work schedules comparatively to the parenting schedule;
- whether the child was happy or suffered psychologically or emotionally under the shared parenting schedule;
- the suitability of the parent’s independent homes; and
- the preferences of the child.
After considering these factors, the court found that it was in the best interests of the child to maximize the involvement of both parties. The parties in Perez “demonstrated the extraordinary level of cooperation required for a joint parenting arrangement,” and that, the parties lived in close proximity to one another and the evidence showed that the parenting time schedule work successfully for the parties and the child.
While Perez may itself be “extraordinary,” House Bill 4113 seeks to make it the rule rather than the exception. Almost all of the various bar associations in Illinois have weighed in against House Bill 4113. In their view, a shared parenting time schedule would work for children only in the most extraordinary cases, and it takes an extraordinary set of parents to make such a schedule successful.
While House Bill 4113 is not scheduled for a vote anytime soon, it is anticipated that it will be back in a future legislative session. For more information, please contact us.