Illinois parental responsibilities and parenting time

If you search for Illinois child custody you will find a decade of pages describing a law that no longer exists. Illinois deleted custody and visitation from its statute on January 1, 2016. Not renamed. Deleted.

What replaced them is two separate decisions, made on two separate lists of factors, and a written plan you have to file whether or not you and your co-parent agree.

Who gets custody in an Illinois divorce?

Nobody, because Illinois no longer allocates custody. It allocates parental responsibilities, and those come in two parts:

• Significant decision-making responsibility, which is the authority to make major decisions about the child

• Parenting time, which is the schedule of when the child is with each parent

The two are decided separately and do not have to go the same way. A parent can hold all the significant decision-making and have a minority of parenting time, or the reverse.

What are significant decisions in Illinois?

Four, and section 602.5(b) lists them: education, including the choice of schools and tutors; health, including all medical, dental and psychological decisions and the treatments arising from them; religion; and extracurricular activities.

The court allocates each of those issues to one or both parents. It is issue by issue, so a judge can give both parents joint say over education and give one parent sole authority over health care.

Religion gets its own rules. The court allocates religious upbringing in accordance with any express or implied agreement between the parents, and looks to evidence of past conduct where there is no agreement. If it finds there was no agreement and not enough evidence of a course of conduct, it does not allocate religious upbringing at all.

Two more provisions people rely on without knowing they exist. Each parent has sole responsibility for routine decisions and for emergency decisions affecting the child's health and safety during their own parenting time. And nothing in the Act requires that each parent be allocated decision-making responsibility, so there is no presumption of joint decision-making the way there is in some states.

What do Illinois judges weigh on decision-making?

Fifteen factors, and they lean heavily on how the two of you have actually behaved. The court considers the child's wishes given their maturity, the child's adjustment to home, school and community, the mental and physical health of everyone involved, the parents' ability to cooperate or the level of conflict between them, each parent's level of participation in past significant decisions, any prior agreement or course of conduct on decision-making, the parents' wishes, the child's needs, the distance between homes and the practicalities of transport and schedules, whether a restriction on decision-making is appropriate, each parent's willingness to encourage a close relationship with the other parent, physical violence or threats against the child, abuse against the child or a household member, whether a parent is a sex offender and the nature of the offense, and any other factor the court expressly finds relevant.

How does a judge decide parenting time in Illinois?

On the child's best interests, starting from a presumption in your favor. Section 602.7(b) says it is presumed both parents are fit, and the court may not place any restriction on parenting time unless it finds by a preponderance of the evidence that a parent's exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health.

Serious endangerment is a high bar and it is deliberately high. Ordinary parental shortcomings do not clear it.

The seventeen parenting time factors overlap the decision-making list but add several of their own. The one that decides the most cases is the third: the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months before the petition was filed, or since birth for a child under two.

That is a backward-looking factor, and it is the reason lawyers tell clients not to move out and leave the children behind while they think things over. Two years of who actually did school pickup is evidence, and it is already being collected whether you are paying attention or not.

Both sections close with the same limit: in allocating either decision-making or parenting time, the court may not consider conduct of a parent that does not affect that parent's relationship to the child. An affair, on its own, is not a parenting time argument in Illinois.

What is an Illinois parenting plan and when is it due?

A written document allocating decision-making, parenting time, or both, and it is due within 120 days.

Section 602.10(a) requires all parents, jointly or separately, to file a proposed parenting plan within 120 days after service or filing of any petition for allocation of parental responsibilities. The court can extend it for good cause. If the respondent has filed no appearance, no plan is required unless the court orders one.

Miss it and the consequence is a hearing nobody wanted: in the absence of any filed plan, the court must conduct an evidentiary hearing to allocate parental responsibilities.

An agreed plan is worth a great deal. A written plan signed by both parents binds the court unless it finds the agreement is not in the child's best interests, and if the court refuses to approve it, it has to make express findings explaining why.

What has to be in an Illinois parenting plan?

Fifteen minimum items, and the list is more detailed than most people expect:

• An allocation of significant decision-making responsibilities

• Living arrangements and each parent's parenting time, either as a schedule naming which home the child is in on given days, or as a formula detailed enough to enforce later

• A mediation provision covering any proposed change to parenting time or responsibilities, unless one parent has all the significant decision-making

• Each parent's right of access to medical, dental, psychological, child care, school and extracurricular records

• A designation of which parent is denominated the parent with the majority of parenting time

• The child's residential address for school enrollment purposes only

• Each parent's residence address and phone number, and their employer's name, address and phone number

• A requirement of at least 60 days' written notice before a parent changes residence

• Notice duties for emergencies, health care, travel plans and other significant issues

• Transportation arrangements between the parents

• Provisions for communication with the child during the other parent's time, including electronic communication

• Provisions for resolving issues from a future relocation

• Provisions for future modification if specified events occur

• Any right of first refusal, including the length and kind of childcare that triggers it, how notice and response work, and who handles transport

• Anything else that serves the child's best interests or helps the parents cooperate

Where there is evidence of domestic violence or abuse, or the plan states that there is, the address, employer and change-of-residence details are not required.

Is mediation required for parenting disputes in Illinois?

Effectively yes. Section 602.10(c) says the court shall order mediation to help the parents formulate, modify or implement a parenting plan, unless it determines that impediments to mediation exist.

That is backed by a court rule. Rule 905 requires every judicial circuit to establish a mediation program for allocation of parental responsibilities, relocation and parenting time cases, with local rules covering mediator training and how referrals work. Costs vary by circuit, and are borne by the parties subject to reallocation at the end of the case.

What is the parenting class in an Illinois divorce?

A requirement, not a suggestion. Rule 924 requires each circuit or county to create or approve a parenting education program of at least four hours covering parenting time, allocation of parental responsibilities, and their impact on children.

All parties must attend and complete it as soon as possible, and no later than 60 days after the initial case management conference. The court may excuse attendance only for good cause documented in the record, with a finding that excusing a parent is in the child's best interests. It may impose sanctions on a party who willfully fails to complete the program.

The court can add a second one. Under section 404.1, in a case involving minor children the court may order the parties to attend an educational program on the effects of dissolution on children, running no more than four hours in total.

What are the case management deadlines in an Illinois parenting case?

Two conferences, both fixed by Rule 923.

The initial case management conference happens not later than 90 days after service of the petition is obtained. At it, the parents show proof of completing parenting education or a schedule for doing so, present an agreed parenting plan if they have one, and get referred to mediation if they do not.

The full case management conference happens not later than 30 days after mediation is completed. That is where the court decides whether to appoint an attorney for the child, a guardian ad litem, or a child representative. The timeline chapter shows how those dates fit against everything else on the calendar.

Can you move out of state with your child in Illinois?

Only after notice, and Illinois measures relocation in miles rather than in state lines.

Section 600(g) defines a relocation three ways:

• A move of more than 25 miles from the child's current primary residence, where that residence is in Cook, DuPage, Kane, Lake, McHenry or Will County

• A move of more than 50 miles from the current primary residence, where that residence is in any other Illinois county

• A move of more than 25 miles to a residence outside Illinois

Distance is measured by an internet mapping service using surface roads, and where the service offers alternatives, the shortest route is used. A move from Chicago to a suburb 30 miles away is a relocation. A move from a downstate county to somewhere 40 miles away is not.

The procedure is notice-first. Section 609.2 requires at least 60 days' written notice to the other parent, filed with the circuit clerk, stating the intended date of the move, the new address if known, and how long the relocation will last if it is not permanent. If the other parent signs the notice and the relocating parent files it, relocation is allowed with no further court action at all.

If the other parent objects or will not sign, the relocating parent files a petition for permission, and the court decides on eleven factors including the reasons for the move, the reasons for the objection, each parent's history with the child, educational opportunities in both places, extended family in both places, and whether a workable allocation can still be built afterward.

Failing to give notice without good cause is expensive twice over. The court may treat it as a factor in deciding whether the relocation is in good faith, and as a basis for awarding the other parent reasonable attorney's fees and costs.

How does the parenting arrangement affect child support in Illinois?

Directly, and the threshold is a specific number. If each parent has 146 or more overnights a year, the child support calculation switches to the shared physical care formula, which multiplies the basic obligation by 1.5 before offsetting the parents against each other. The child support chapter walks through both versions of the math.