May 22, 2014

DuPage Divorce Attorney: Forensics in Custody Litigation

I was pleased to have been invited by one of our area's most competent child custody evaluators to attend the recent "Forensic Forum" in Chicago. Forensic Forum is an invitation-only association that brings together child custody experts in the form of evaluators, judges, guardians ad litem, and custody attorneys. The subject for the meeting was Parental Alienation, and two experienced Cook County judges spoke about their experiences in dealing with Parental Alienation in divorce and custody cases.

How are forensics used in custody cases? Child custody evaluators must employ methods of assembling forensic data including but not limited to: (1) interviews of the parents and children; (2) interviews of those relatives, friends, therapists, teachers, et al., involved with the children determined to be of relevance to the case by the evaluator; (3)Interviews of those collateral witnesses involved with the children determined to be of relevance to the case by the parties; (4) review and assessment of all relevant past and present medical, psychological, and other relevant records; (5) the use of standardized measures of behavioral health, including psychometric tests, structured measures of children’s perceptions of their parents given under standardized and non contaminating conditions; (6) the use of standard measures of psychological health, personality, and parenting capability; (7) close consultation with other experts as conditions dictate; (8) the careful assessment of substance abuse possibilities through all appropriate means including drug testing; (9) the use of all relevant and useful screening measures, where there are allegations of domestic violence, including assessment of police reports, review of CPS reports and determinations; review of hospital and medical records; and careful interviewing of involved mental health professionals; (10) the use of all relevant and useful screening measures, where there are allegations of child sexual abuse, including assessment of police reports, review of CPS reports and determinations; review of hospital and medical records; careful interviewing of involved mental health professionals; and where appropriate, the use of such measures as the Abel Assessment for Sexual Interest.

It is through collaboration between custody evaluators, judges, and attorneys that a community of experts develops to more appropriately manage difficult issues in custody cases such as Parental Alienation, Child Abuse, and other forms of pathology that directly impact the developmental well being of children. Law Offices of Michael F Roe is pleased to be a part of this community.

January 29, 2014

Kane County Divorce Lawyer: Custody and New Right of First Refusal Law

On January 14, a new law went into effect in Illinois that allows judges to order a “right of first refusal” for parents who share joint custody of their children. The right of first refusal (ROFR) means that any time one parent cannot care for the children during his or her scheduled period of possession or custody, that parent must first offer the other parent the right to take the children during that time. “[I]f a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children.”


The right to have the possession of one's child or children when the other parent is unable to provide direct care can be important to the noncustodial parent. In many cases, one parent has only alternating weekends and midweek dinners with the children, and the chance to have more parenting time when the custodial parent is away on a trip or at a seminar is invaluable.

Prior to this year's new law, judges had discretion in allowing these rights of first refusal. In my experience, there have been judges that would outright refuse to allow them in parenting agreements, believing that these clauses in agreements only invited more disputes about whether one parent's seminar was long enough, or whether the babysitter hired for a two hour movie was a violation of the ROFR. Some judges just didn't want to open the door to a feature of a Parenting Agreement that would invite more litigation.

The new law is written not to mandate a ROFR, but to give the judge the ability to order it if the particular case ( and the mutually respectful parents) allows for it. Typically, judges will allow for the right once a material period of time, such as four hours of nonpossession of the children, is involved.

In my view, the legislature made a small effort to create an opening for a noncustodial joint parent to have more available parenting time. It would have been better, in my view, for the legislature to have done away with the archaic Illinois custody and visitation statutes that create these situations where parents are literally starved for time with their kids.

This new law is a very small step, but it is hardly a remedy for Illinois' antiquated custody laws that leave so many parents disenfranchised from the weekly lives of their children. I support and advocate for statutory presumptive shared parenting, and do all that I can in my practice to achieve primary custody or shared parenting for the men and women that retain my firm.

January 2, 2013

Kane County Divorce Lawyer: Childrens Rights Council weighs in on 'Parentectomies'

Childrensrightscouncil Illinois In fact, according to university researcher Dr. Emily Douglas, in "Mending Broken Families: social policies for divorced families", the overwhelming majority of divorcing fathers have wanted at least equal parenting time with their children, or sole custody -- and this has been consistent since the first surveys were undertaken in the early 1960s. Additionally, research by esteemed clinical psychologists like Dr. Joan B Kelly and others have substantiated that the persistence of Every Other Weekend "de-parenting" or "a-parent-dectomies" , applied almost entirely only to fathers, has resulted in children becoming emotionally detached, as 'their fathers were turned into uncles'. In fact, it was partially due to the research of people like Dr. Kelly, that a direct link was established between the 30% detachment rate between divorced dads and their children, and the Every Other Weekend 'visitation' schedules.

December 3, 2011

Kane County Divorce Lawyer: Custody and UCCJEA Commentary

My practice has seen an increase in the number of interstate custody disputes, in part due to the increased mobility of families as well as due to age old issues of parents wishing to return to their "home state" with their children once the marriage begins to break down. The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), a national uniform act, was enacted in Illinois on July 8, 2003, and took effect on January 1, 2004.1 It was incorporated into Illinois law to end custody jurisdictional disputes between states, to promote cooperation between states in determining custody issues, and to enhance the ability of states to enforce custody orders expeditiously.

I receive calls frequently from parents who have either fled the state of Illinois to avoid domestic violence and a bad marriage, or from parents left behind in Illinois once a divorce commences and the opposing spouse wishes to leave Illinois and run "home" with the children to his or her family out of state.

Illinois law disfavors parents leaving the state and taking the children with them. Illinois has long had a tradition of requiring Illinois parents in divorce to stay in Illinois and raise the children here with both parents. Our removal statute creates factors that determine whether a party may lawfully "remove" the child or children from Illinois to reside permanantly in another state.

The UCCJEA as part of Illinois created a powerful tool to help the states determine whether Illinois or another state should decide an interstate custody dispute. What has been interesting to me in my custody practice has been the observation that even though the UCCJEA in incorporated into most states' law, few lawyers and a minority number of judges seem to understand how the UCCJEA works and how it is intended to guide interstate custody decisions.

THe UCCJEA is a powerful tool in an Illinois lawyer's arsenal. If your spouse has fled the state with your children, or if you have left the state lawfully to avoid domestic violence, please contact my office for a thourough consultation on interstate custody and the UCCJEA.

September 1, 2011

Illinois Divorce and Shared Child Custody

Many Illinois divorce cases commence with a battle over the custody of the minor children. Because Illinois has not adopted Presumptive Shared Parenting, both parents are pitted in battle against each other for the parenting rights to their child or children. While Illinois' refusal to adopt shared parenting, to my mind, is unhealthy and inappropriate, arguments in favor of keeping the antiquated "winner-loser" formula for custody in Illinois do not stand the test of time nor reason.

There are four general arguments against shared parenting that are typically advanced.

(1) Custody should go to the historic "primary caretaker," which most typically has been the mother.

(2) Children need a "stable environment" and therefore should not spend equalized time with both parents.

3) Children should not be exposed to post-divorce parental conflict; and

(4) Shared parenting is unworkable because it is not practicable if the parents do not reside in the same community;

All the evidence indicates that these arguments fail for not adequately considering the importance of both parents in a child's life. A major study by Dr. Robert Bauserman published in 2002 in the Journal of Family Psychology examined all existing studies regarding joint custody from 1982 to the date of the study, encompassing 2,660 children. He concluded "Children in joint custody arrangements had less behavioral and emotional problems, had higher self-esteem, better family relations and school performance than children in sole custody arrangements. In fact, all these children were as well adjusted as intact family children on the same measure, said Dr. Bauserman, "probably because joint custody provides the child with an opportunity to have ongoing contact with both parents."

Joint custody and shared parenting do not necessarily mean 50/50 division of time with the children. In some cases, a 50/50 allocation is not workable, nor does it serve the interest of the children. However, giving one parent an almost exclusive parenting role with the children while relegating the non-residential parent to the role of "visitor" is wrong, and more importantly, it is unhealthy for the developmental lives of the child or children.

The current studies bear out that shared parenting serves the interests of both good parents and the developmental lives of the children. This is but one reason why this Firm fights for the rights of parents to have the strongest and most actively participatory role in the post-divorce lives of their children as possible.

April 15, 2011

Illinois Divorce: Custody and Nontraditional Roles

I found a most interesting blog this morning, by Sophia van Buren, that discusses her role as a non-custodial parent. In her view, being the non-custodial parent and a mother has created issues and challenges that many women in divorce do not encounter. Part of what she comments on is the stigma associated with being designated the non-residential parent. Here in Illinois, the stigma is worse, as parents who do not have "primary residential custody" are awarded "visitation." In Illinois, some parents, usually the Dads, become "visitors" of their own children; a tragedy.

Ms. van Buren discusses why she became the non-residential parent:

Not only was it up to me to “fix” and clean up the mess my ex had made of our family, home, and finances, but I couldn’t let my personal feelings get in the way. There was too much work to be done. My husband could not be counted on for help. His tremendous indiscretions at work had lost him his job and there was no indication as to whether or not he would ever be able to the take care of our family again financially. Common sense told me that, since he couldn’t do it, I would have to. As the mother, it was up to me to put my feelings aside and simply make sure I could feed, shelter, clothe, protect, and insure our children.

I would have to “man up.”

What Ms. van Buren and others may be suggesting, and what I have been writing about for years, is question as to why in many states, Illinois included, we still see the need to designate parents as "winners and losers" in custody cases. In the case above, the Mom needed to be the out-of-house worker, and provide income to the family. Why, then, should she, or any Dad that must also work and provide, be stigmatized as the non-residential or visiting parent? In my view, the best approach is to create individual parenting plans for each family that do not create, among fit and loving parents, a stigma of a "winner or loser" of custody.

It's time for Illinois to create presumptive shared parenting, appropriate, nonprejudicial parenting plans for Mom and Dad, and for many Dads, and some Moms, the removal of the stigma of the "visiting parent."


October 13, 2010

Kane County Divorce and Joint Custody

J_custody.gif I receive calls from parents contemplating divorce in Kane County and DuPage County about joint custody in Illinois. Many good parents tell me that "I just want joint custody," though many times I feel that people do not understand what joint custody means in Illinois.

In general, Illinois Joint Custody means that the parents agree to make major decisions regarding the child or children together, such decisions as schooling, medical care, and religious practices. In Illinois, the concept of statutory joint custody does not address, at all, the idea that the parents will share the parenting time with the children.

As I have written before, Illinois still has an archaic, and in my view, unfair approach to custody. Unlike other states that have adopted "presumptive shared parenting," Illinois still requires that the Court determine a "residential parent" and a parent that has "visitation." Most often, Mom becomes the residential parent, and Dad is relegated to the status of a "visitor" of his own children. Illinois still allows for the stress, financial hardship, and animosity that is engendered by forcing good parents to contest each other for the role of "primary residential parent."

My goal in representing both Moms and Dads in custody cases is to engineer a Parenting Plan result that best suits the individual parenting styles and family system dynamics of each family. In many cases, a creative solution can be devised that allows both good, healthy parents to have an equitable role in the developmental lives of their children. In those cases where the fitness of a parent is at issue, it is necessary to devise a unique strategy that may involve clinical intervention, so that the developmental safety of the children is best addressed.

July 2, 2010

Kane and DuPage County Divorce: Joint Custody

There are a number of states that have adopted presumptive joint custody, or in other words, these states presume in a divorce that absent other evidence, the court should find that joint legal and shared physical custody is in the child's best interest. Illinois is not one of these states, unfortunately. Recently, the Illinois Legislature's appointed Family Law Committee has been exploring a number of changes to Illinois' Marriage and Dissolution of Marriage Act. Is presumptive joint physical custody coming to Illinois? Is Illinois emerging from the Dark Ages of custody law? It does not look like it.

The word from colleagues is that the adoption of presumptive joint custody in Illinois is not going to occur. The reasons for this failure are not due to the efforts of many good lawyers to seek progressive changes to Illinois law. There are some lawyers, however, for whom positive change for families and children is not a good thing. Unfortunately, progressive changes do not look like they are on the horizon in Illinois.

I have consistently advocated for joint legal and physical custody. Of course, there are exceptions; for example, I just completed a trial where my client was properly awarded sole legal and primary physical custody. Yet, as a general proposition, good, competent, loving parents, both Mother and Father, should share the parenting of their children after divorce. The psychological studies reveal that presumptive joint custody is in the best interest of the children and the parents.

"By presuming joint custody as early as possible in the court process, parties are impelled to attend to the child's needs, thereby encouraging mature behavior and discouraging divisive, childish conflict. Shared parenting with mutual responsibility -- joint custody -- is in the best interest of the child, parents, society, and the court system. Those courts can assist the parents in settling their own disagreements by providing a context for negotiation and helping to mold specific child-centered joint custody agreements." Potash, Marlin S., Ph.D. : Psychological Support for a Rebuttable Presumption of Joint Custody : Probate Law Journal, Vol. 4, 17, 1982

May 24, 2010

Kane and DuPage County Joint Custody

I have written previously about joint custody, and what this term means in the context of Illinois custody litigation. If one thing is clear, it is certain that many lawyers, parents, and even some judges do not have a clear view of what Illinois Joint Custody entails.

Put simply, joint custody awards require the parents to make major decisions about the children together. In the event of a dispute, a means for solving the dispute is implemented. And, the joint custody order should call for periodic review, so that as the children age, their needs can be met with flexible mutually agreed changes, such as parenting schedule changes.

One aspect of joint custody that I feel is not often considered is the requirement that joint custody be ordered when a risk of alienation of the non-custodial parent is a risk. Some judges feel, following In re Marriage of Marcello, that they cannot order joint custody if the parents do not get along, and there is a breakdown of communication. What I have observed in many cases is that the primary caregiver parent, who many times may be the temporary custodial parent, simply becomes difficult, argumentative, or at worst, alienating, with the hope that the non-custodial parent is cut out of the decision making for the children.

In my opinion, an award of joint custody can be a reward for two parents who cooperate well with each other. At the same time, a requirement of joint custody may be one tool the court can implement to require a custodial parent to involve, and share information with, the non-custodial (usually Dad) parent.

Using the father as the noncustodial example in this case, ensuring that Dad has joint custody, and requiring Mom to communicate and decision make with him, meets the test that Seitzinger and other Illinois cases have established regarding joint custody: it's for the best interests of the kids, and not reserved only for parents that get along. Indeed, the parent that wishes to push Dad away should be required by the judgment to joint parent.

Kids need both loving parents in their lives; mandated joint custody is one way to accomplish this.

January 19, 2010

DuPage and Kane County Divorce: Court Orders

Taking Daughter To Church May Violate Court Order
Dad Says Half-Jewish Child Should Be Exposed To Christianity, Too
by Chicago Tribune Reporter Mike Puccinell at

A compelling story about a Father and his child has appeared in Illinois media this week. The story concerns a Christian Dad who is in a high conflict divorce and custody case with his Jewish wife.

"I have been ordered by a judge not to expose my daughter to anything non-Judaism," Joseph Reyes said. "But I am taking her to hear the teachings of perhaps the most prominent Jewish Rabbi in the history of this great planet of ours. I can't think of anything more Jewish than that."

Last month, Judge Edward Jordan issued a temporary restraining order specifically barring Reyes from exposing his daughter to any religion other than Judaism.It happened after Reyes had his daughter baptized without first consulting his estranged wife.

There is a lesson here to be learned, but the lesson has little to do with comparative religious traditions, or the best interest of a child with respect to her religious training. The lesson has to do with the nature of court orders, and why managing adverse court orders is a very important consideration in divorce and custody cases.

Many litigants do not like certain court orders. Some Dads are ordered to pay child support that is excessive, especially after a father has an adverse job change. Some parenting orders may no longer meet the best interests of children. If you have in place a court order that is inappropriate, is the answer to willfully violate it, in order to prove a point? If a parent is paying too much statutory child support based on their income, is it permissible to simply start paying less? The answer, of course, is no.

Your attorney can meet with you and plan a strategy to modify any court order that is legally inappropriate to your current circumstances. Why use "self help," and risk the sanctions of the court, and why put yourself in a position, as I believe Mr. Reyes is about to do, to test the limits of the judge's patience and resolve? Mr. Reyes appears willing to place himself in contempt of the court, which may place him in the Cook County lockup for civil contempt.

Mr. Reyes should respectfully request that the last court order be modified to allow him to attend his place of worship of choice with his daughter. If you have a court order that is adversely affecting you, contact an attorney today, and go about seeking change and justice the right way.

Jail is no place for a good and loving Dad to sit.

December 21, 2009

A Father's Fight to Regain Custody after Abduction to Brazil

By BRADLEY BROOKS, Associated Press Writer Bradley Brooks, Associated Press

RIO DE JANEIRO – A New Jersey father has his hopes pinned on Brazil's chief justice, praying he will regain custody of his son after a five-year court battle in time to spend the holidays with the boy — in the United States.

David Goldman also said he would allow 9-year-old Sean's Brazilian relatives to visit with his son if he wins the case.

"It's my hope we'll have ... the holidays and New Year's and a very long, happy, healed life as father and son — at home," Goldman told The Associated Press in an exclusive interview Sunday. "My whole family and Sean's whole family have been waiting, agonizing for over five years to be reunited with their grandson, with their cousin, with their nephew, with my son."

Late Sunday, the Supreme Court said in an Internet statement that Chief Justice Gilmar Mendes would rule Monday on appeals made by Goldman and Brazil's attorney general seeking to lift a stay on a lower court's order that Sean be handed over to his father..

Goldman launched his case in U.S. and Brazilian courts after Sean was brought by his mother in 2004 to her native Brazil, where she then divorced Goldman and remarried. She died last year in childbirth, and the boy has lived with his stepfather since.

The lawyer for the boy's Brazilian family offered to negotiate a settlement, and the family also invited Goldman to spend Christmas with them. Goldman did not say whether he would accept the invitation if the case was not resolved this week.

Asked if Sean's Brazilian family would be able to visit the boy, Goldman said yes. "I will not do to them what they've done to Sean and me," he said.

The case has affected diplomatic ties between Brazil and the U.S., reaching talks between President Barack Obama and his Brazilian counterpart, Luiz Inacio Lula da Silva. A U.S. senator, reacting to the case, has blocked the renewal of a $2.75 billion trade deal that would lift tariffs on some Brazilian exports.

The U.S. State Department pressed for the boy to be returned. But a Brazilian Supreme Court justice on Thursday stayed a lower court decision ordering Sean to be turned over to his father.

The Brazilian family's lawyer, Sergio Tostes, told the AP he would like to see a negotiated settlement, saying he wanted to end the damage being done to Sean and to U.S.-Brazil relations.

"We're raising the white flag and saying: 'Let's get together, let's talk. We're the adults, we have responsibilities, so let's start to have a constructive conversation,'" Tostes said.

Goldman, however, was in no mood to negotiate.

"This isn't about a shared custody — I'm his dad, I'm his only parent," Goldman said. "This isn't a custody case — it's an abduction case."

After many disappointments, Goldman said he was taking nothing for granted.

"Until my son and I are on a plane together and those wheels are up, I'll be no less determined and no less hopeful for that day to come," he said.

He said he can't wait to make up for lost time.

"I have five years of love to give him, so he's going to get an extraordinary amount," Goldman said. "With love and patience, we will heal."

December 13, 2009

Children's Rights Council of Illinois

Michael Doherty of the Children's Rights Council of Illinois was kind enough to write me this weekend to say that his members have been following Illinois Divorce Law Blog. Here is an excellent article about shared parenting in which the Children's Rights Council was quoted:

Sharing Custody By: Sarah Rupp

"Do what's best for the kids."

Everyone says that during a divorce. But determining "what's best" often becomes a mud-slinging tug-of-war where no one wins - especially the children.

Shared parenting plans attempt to diffuse the fighting, putting the children first. Both parents get joint legal and physical custody. The terms "custodial parent" and "visiting parent" no longer apply.

Supporters say joint custody helps fight the "fading father" syndrome, keeping dads emotionally and financially involved.

It makes sense. In a perfect world, children should grow up in a loving, supportive environment with both parents. And in a perfect world, both parents should share equal responsibilities, eradicating "traditional" gender roles where the father's the sole breadwinner and the mother's the sole caregiver.

But in the real world of divorce, the rational, level-headed thinking that joint custody often requires doesn't always seem possible. And that's the biggest barrier.

It's not easy for an ex-husband to drop the kids off at the home of his former wife, who he says lives with a new boyfriend every other month. It's equally difficult for an ex-wife to encourage her kids to see their dad after he walked out on them. And one woman complains that shared parenting keeps her from moving up in her career, since she can't take her dream job across the country without giving up her son. She questions adhering to the rules when, in her opinion, the father ignores the children and doesn't pay any child support.

But David Luevy, an attorney and president of the Children's Rights Council, based in Washington D.C., says that, overall, shared parenting works better than sole custody arrangements.The Children's Rights Council suggests the following custody schedule:

Age Recommended contact with both parents
Under 1 year Part of each day
Ages 1 to 2 Every other day
Ages 2 to 5 Not more than two days w/out seeing parents
Ages 5 to 9 Alternate weeks; "off duty" parent getting a mid-week visitation
Over 9 Alternate weeks

Luevy says studies from the American Psychological Association show that children tend to fare better emotionally when both parents are involved, minimizing the lasting effects of divorce. And fathers who share custody are also more likely to pay child support.

Judith Seltzer at the University of Wisconsin in Madison says that after studying more than 13,000 divorced families, she found that joint custody keeps fathers more involved.
Joint Custody


* Both parents usually stay more involved.
* Child support is fully paid more often.
* Parents share more responsibilities and raise the child together.


* It doesn't work as well if the parents don't live in the same area.
* It's ineffective if the parents continue to fight. Children want their parents to get along and divorce is supposed to solve that problem.
* Kids may complain about feeling "unsettled" since they have to switch houses so often.
* It can be a difficult arrangement to uphold when the child becomes a teenager. Luevy says that parents need to be flexible and work with the child to work out a schedule.

The only time shared parenting doesn't work better than other custody arrangements is if the parents continue to fight, says Luevy. Arguing, crying and all the other emotional baggage that's hard to shed hurts the children more than anything else. (Of course, joint custody isn't possible if one of the parents is abusive or unfit in other ways.)

With that said, should fighting parents even attempt 50/50 shared parenting arrangements?

Luevy says yes.

"Even the most contentious parents can make joint custody work with highly structured visitation schedules," he says. "A flexible schedule will not work."

That's why the Children's Rights Council promotes using "drop off points," a neutral setting to transfer the kids, so that parents don't have to see or talk to each other.

"Community centers, churches and day cares make excellent neutral settings," he says.

Joint custody is now the preferred and presumed custody arrangement in 26 states and the District of Columbia. And more than one out of five divorces has shared parenting arrangements, says a 1997 report from the National Center for Health Statistics.

"Considering the fact that for hundreds and hundreds of years, sole custody has been the only acceptable custody arrangement, it's remarkable how quickly shared parenting has caught on," says Luevy.

December 1, 2009

Progress on Illinois Family Law Changes

I spoke with one of the committee leaders from the Illinois Legislature's Family Law Committee today on the progress being made to reform Illinois' antiquated custody and support statutes.

I have been writing for years on the need for Illinois to join the 21st century, and revise its Dissolution of Marriage Act to reflect statutes that exist in other states that create, for example, a presumption of joint legal and physical custody.

A legal presumption of joint custody acts to establish both parents as presumptively fit to share the parenting of their children. Presently in Illinois, mothers and fathers fight over who will "win" the custody of the child(ren). States that have enacted presumptive joint custody take the fight out of these cases. These states, of course, leave open the possibility that one parent may challenge the fitness of the other to have shared custody, but at the every least, unlike Illinois, these states do not presume that one parent is to be a winner, and the other a loser, in the custody war.

What I'm hearing is that there are changes being considered to the way child support will be calculated in Illinois, with both parent's incomes being factored into the support equation. I have not heard much regarding a wholesale change to the custody statutes, and trust that consideration is being given to amending, or tossing altogether, these wrongheaded custody statutes that have engendered so much litigation and bitterness in Illinois.

Good and loving parents should share the parenting of their children, post-divorce.

October 2, 2009

Illinois Divorce and Joint Custody Defined

I was involved in a child custody matter recently that was becoming difficult to settle, for a number of reasons. I represented the Dad in the case. One of the reasons for the impasse was the wife's refusal to consider joint custody. I had prepared a detailed Joint Parenting Agreement that was a healthy and proper plan for the parents and the children of the marriage, It was rejected.

Here's what occurred. Shortly before trial, I took the wife's deposition. In the deposition, I began to inquire as to her reasons for refusing a joint parenting agreement, pointing out to her examples as to how she and my client had communicated and worked together on recent medical and school issues involving the children.

What developed in the deposition was an appreciation that she had never accurately understood what joint custody in Illinois meant. She told me that she refused to share the time 50/50 with the children with her then-husband, but she offered that she was completely OK with making him a part of every decision in the children's lives She affirmed that he is a good dad, and should be equally involved in the major decisions.

Definition: Joint custody of a child requires both parents to cooperate in deciding major issues affecting their children, including, but not limited to, major medical decisions, religious training, and education. Sometimes, social decisions such as sports, camps, can be included in this definition.

The moral of the story, it seems, is that it helps that the parties understand at the outset of the case what is meant by joint and sole custody in Illinois, before a dispute develops over the idea. Wife''s longtime misunderstanding lead to a lack of progress on settlement. Once she was assured of what the concept of joint custody was, she quickly agreed to the joint parenting plan. The parties had already agreed on a parenting schedule. The case settled, and the cost and stress of a trial over legal custody was avoided.

August 2, 2009

Illinois Divorce and Changes in our Antiquated Laws?

Illinois attorneys and the Illinois legislature are now studying changes to Illinois' Marriage and Dissolution of Marriage Act. One of the goals of the review is to, perhaps, bring Illinois into the 21st Century by reforming the way we resolve custody issues, as well as revising the language of custody. What changes would you like to see in our Illinois dissolution and custody statutes?

I'd certainly like to see the concept of "custody" relegated to the dustbin of history. Mom and Dad are parents...why not enact legislation that defines parenting as a shared relationship? Isn't it almost always true that the non-custodial parent hates to have what is called "visitation?" When does a parent become a visitor? How many custody wars have been fought over who would be relegated to "visitor" status?

Minnesota attorney and mediator Molly Millet discusses below changes that Minnesota made in 2007: "The biggest change in Minnesota that has been helpful is the perception of "custody." Before, parents would fight over the custody label — who got custody and how that related to child support. Now, it's "parenting time." Now, parents are focusing on time with their kids, rather than a legal label.It also takes both spouses' incomes into account. If you earn twice as much, you will pay more. It didn't make any sense before. Let's say Mom worked and Dad lost his job. He was paying child support, and the calculation didn't in any way take into account Mom had always earned more than Dad. Also before, expenses were split 50-50 regardless of who made what income. Now, in most cases, it's split proportionally."

I've discussed some of the proposed changes with members of the Family Law Committee that are advising the legislature. Any changes that bring Illinois into the modern custody era will be welcome.

June 10, 2009

Does Shared Parenting require a 50/50 Split of Time? An Australian perspective.

Shared parenting laws introduced by the Howard government in 2006 do not guarantee divorced fathers the right to a 50-50 time split with their children because (as the article argues) such an arrangement is not always in the best interests of the children.

Instead, the legislation requires the Family Court to "consider" whether equal time with both parents suits a particular child, and can decide that in some cases it does not.

The Australian last week reported that fathers are overwhelming staff at the new Family Relationship Centres, where all separating parents must now go before approaching the Family Court, demanding to know why they can't have a 50-50 time split with their children.

Staff at the centres say a "pub law" belief about a father's right to a 50-50 time split has taken hold in the community.

But retired Family Court judge Richard Chisholm says the shared parenting laws, introduced in 2006 and now under review, never guaranteed anybody a 50-50 time split. In a paper titled Shared Care and Children's Best Interests at the Legal Aid NSW family law conference, Professor Chisholm said there was "a lot of evidence to support the idea that children will generally benefit if they experience a loving and involved relationship with both parents" after separation.

"There is also evidence that children care a lot about their parents and generally want to remain closely involved with both of them."

Professor Chisholm said the Howard government amendment "envisaged the non-resident parent participating in various aspects of the child's life, for example being involved in the child's daily routine".

But the provisions about equal time did not reflect what most expert researchers believed was important for children.

"What seems to matter most to children, and what seems most important for their healthy development, has more to do with what happens when they are with each parents, and in particular whether they feel loved and cared for," Professor Chisholm said.

"The idea of equal time makes a lot of sense in terms of adult entitlement.

"As far as I can tell, it does not reflect what research scholars believe is important for children's development."

He urged academics to do more research into the benefits of shared parenting, particularly in cases where parents are in conflict, saying: "We need to know much more about the nature of conflict, the extent to which children are being exposed to it, and the extent to which parents and the courts might be treating the legislation as requiring some form of shared parenting, even when it is damaging to the children."

The Australian Institute of Family Studies is conducting a review of the Howard government amendments, which have been the subject of mounting complaints from separated mothers and fathers.

If the review recommends changes, Professor Chisholm said: "I hope the focus will be on how it impacts on families, rather than how it impacts on voters and lobby groups."

Caroline Overington | June 08, 2009
Article from: The Australian

June 3, 2009

Top Ten Ways To Protect Your Kids From The Fallout Of A High Conflict Break-Up

1. Talk to your children about your separation.

Studies show that only 5 percent of parents actually sit down, explain to their children when a marriage is breaking up, and encourage the kids to ask questions. Nearly one quarter of parents say nothing, leaving their children in total confusion. Talk to your kids. Tell them, in very simple terms, what it all means to them and their lives. When parents do not explain what's happening to their children, the kids feel anxious, upset and lonely and find it much harder to cope with the separation.

2. Be discreet.

Recognize that your children love you both, and think of how to reorganize things in a way that respects their relationship with both parents. Don't leave adversarial papers, filings and affidavits out on your kitchen counter for children to read. Don't talk to your best friend, your mother, your lawyer on the phone about legal matters or your ex when the kids are in the next room. They may hear you. Sometimes kids creep up to the door to listen. Even though they’re disturbed by conflict and meanness between their parents, kids are inevitably curious -and ill- equipped to understand these adult matters.

3. Act like grown-ups. Keep your conflict away from the kids.

Even parents with high levels of anger can “encapsulate” their conflict, creating a protective buffer for the children by saving arguments or fights for a mediator’s office – or a scheduled meeting at a coffee shop. It may seem obvious but so many separating parents continue to fall down on this front. When parents put children in the middle of their conflict and use them as messengers, sounding-boards, or spies, children often become depressed and angry and may develop behavioural problems.

4. Dad, stay in the picture.

Long-term studies show that the more involved fathers are after separation and divorce, the better. Develop a child-centred parenting plan that allows a continuing and meaningful relationship with both parents. Where a good father-child relationship exists, kids grow into adolescence and young adulthood as well-adjusted as married-family children. High levels of appropriate father involvement are linked to better academic functioning in kids as well as better adjustment overall. That's true at every age level and particularly in adolescents. Fathers, be more than a “fun” dad. Help with homework and projects, use appropriate discipline, and be emotionally available to talk about problems.

5. Mom, deal with anger appropriately.

In their anger and pain, mothers may actively try to keep Dad out of the children's lives -even when they are good fathers whom the children love. When you’re hurting, it’s easy to think you never want to see the ex again, and to convince yourself that’s also best for the kids. But children’s needs during separation are very different from their parents. Research reports children consistently saying, “Tell my dad I want to see him more. I want to see him for longer periods of time. Tell my mom to let me see my dad.”

6. Be a good parent.

You can be forgiven for momentarily “losing it” in anger or grief, but not for long. Going through a separation is not a vacation from parenting -providing appropriate discipline, monitoring your children, maintaining your expectations about school, being emotionally available. Competent parenting has emerged as one of the most important protective factors in terms of children’s positive adjustment to separation.

7. Manage your own mental health.

If feelings of depression, anxiety, or anger continue to overwhelm you, seek help. Even a few sessions of therapy can be enormously useful. Remember, your own mental health has an impact on your children.

8. Keep the people your children care about in their lives.

Encourage your children to stay connected to your ex’s family and important friends. If possible, use the same babysitters or child-care. This stable network strengthens a child’s feeling that they are not alone in this world, but have a deep and powerful support system – an important factor in becoming a psychologically healthy adult.

9. Be thoughtful about your future love life.

Ask yourself: must your children meet everyone you date? Take time, a lot of time, before you remarry or cohabit again. Young children in particular form attachments to your potential life partners and, if new relationships break up, loss after loss may lead to depression and lack of trust in children. And don’t expect your older kids to instantly love someone you’ve chosen – this person will have to earn their respect and affection.

10. Pay your child support.

Even if you’re angry or access to your children is withheld, pay child support regularly. Children whose parents separate or divorce face much more economic instability than their married counterparts, even when support is paid. Don’t make the situation worse. In this as in all things, let your message to the kids be that you care so much about them that you will keep them separate, and safe, from any conflict. They will appreciate it as they get older.

Credit: Top Ten Ways To Protect Your Kids From The Fallout Of A High Conflict Break-Up
by Joan B. Kelly Ph.D.

April 22, 2009

Managing Children's Emotions and Perceptions in Divorce

While divorce proceedings may pose a great burden upon parents, they often have a significant affect upon children as well, who may not fully understand what is happening in the family's transition. Parental separation can fundamentally shift a child's world view, requiring careful steps to ensure that children are able to soundly cope with changes the divorce brings. It is crucial that parents remain focused upon helping children transition during the process:

1. Encourage open communication from your children. Although the complete scope of the process might immediately escape children, it's important that you take time to allow a child to express his or her feelings about the event. This is a way in which you can both come to understand outside viewpoints, as well as providing you with an opportunity to reach and explain the situation in a manner that resonates with the child. If you have multiple children, it's important to speak to them both individually and collectively, as each child is likely to have a different, personal response to the events unfolding, depending on their age and personality.

2. Ensure that all children have a stable social safety net throughout the process. Since the fundamental role of the family is to provide a safe setting in which children can learn and grow, it's important that one continue to provide this level of support even during parental separation. Ensure that children are in a safe environment and remain outside any legal or argumentative environments that might surround the divorce; if you understand with your spouse around children, remain friendly and amicable, independent of your internal feelings. Always reach out to your broader, extended social network so that children feel comfortable – allow them to spend time with friends, relatives and counselors so that they have feelings of stability in spite of the changes around them.

3. Maintain continuity in your own personal life so that you can remain a strong parent. In order to help children cope with a divorce, it's important that one ensure stability in all facets of life, from work to friendships. By maintaining an equilibrium in your life, you can ensure that you'll bring a balanced approach to keeping your life in order so that you can remain strong for your children. It may be beneficial to spend time with a counselor so that you can work through any anxiety or feelings that you have, in order to ensure a proper outlet for those emotions; while it's okay to express yourself around children, one should also ensure that emotions are kept in check and expressed in a structured fashion so children feel comfortable. In order to help children remain strong during a divorce, each parent has to be strong independently.

4. Keep legal challenges outside of the child's daily life. Although court proceedings are a core part of any divorce, children should not have to grasp the details of the legal fight. Instead, keep the legal details separate from your relationship with your children. When working out a legal settlement, always keep the best interests of your children in mind, as those considerations should trump any financial or situational disputes that might arise in the proceedings. Even during the direct divorce proceedings, ensure that you have enough time to devote to nurturing and taking care of your children. Also, take care of yourself, physically and emotionally, so that you have the energy and ability to parent the children.

5. Allow children an expressive outlet to ensure their lives are well-balanced. While no divorce is fun for children, it's important to ensure that children continue to have elements of joy in their life, from celebrating parties with friends to enjoying time off from school on the weekends. Take time away from the bustle of daily life to take your children to a park or to a nice dinner out with relatives so that they can continue to find enjoyment in life, in spite of the larger situation.

Credit to SC Family Law Blog

January 29, 2009

DuPage and Kane County Virtual Visitation in Custody Cases

There are at least five (5) states that have passed legislation regarding virtual visitation, or internet visitation: Utah, Wisconsin, Texas, Missouri and Florida. Other states are sure to follow, and through my firm's nonprofit Illinois, I'm working to develop a legislative bill to propose making Virtual Visitation part of the IMDMA. Michael Gough, a pioneer virtual visitation technologist, has developed a program that we discussed in Chicago some years ago. See

Internet visitation is being implemented, primarily for the purpose of allowing a parent more access to his or her child while the child is not in their care; it is not meant to replace one-on-one visitation. Think of it as a supplement to in person time with your child(ren).

Virtual visitation allows for the parent and child to communicate on a more regular basis, allowing for the parent and child to see and hear one another, which can be more effective than the standard telephone call. It seems that those adverse to virtual visitation are most concerned with parents using it as a means to replace typical in person visitation, which it is not meant to do.

Use the internet to keep in touch with your child on a daily basis can be extremely rewarding for both parent and child, whether they live a town away or across the country. Used properly, virtual/internet visitation could very well enhance the time you spend away from your child during and after a divorce.

January 28, 2009

DuPage and Kane County Co-Parenting

Co-Parenting defined:

Co-parenting enables children to reap the benefits of being raised by both parents in the event of a divorce. The archaic belief that primary custody should always be awarded to the mother is in most jurisdictions not followed. Today, it is widely acknowledged that many good fathers are just as qualified to raise children as good mothers. Therefore, to benefit the children and save the divorcing couple thousands of dollars in litigation fees, thoughtful divorce lawyers encourage their clients to settle custody issues by agreeing to joint legal and physical custody: co-parenting.

Frequently, co-parenting plans will divide the time children spend with each parent relatively equally, providing each parent an opportunity to raise their children and enjoy spending large amounts of time with them as they grow up.

In order for a co-parenting arrangement to work, certain factors must exist:

* Both parents must live close to each other, either in the same school district or close enough so that the children may be easily transported to school from either parent's house. This will also allow children to participate in extra-curricular activities and enjoy social time with their friends, regardless of which home they are staying in.

* Both parents must be able to agree on important parenting decisions concerning schooling, extra-curricular activities, religious training and upbringing, and medical care. Both parents must be willing to attend parent/teacher conferences, sporting events, and other school sponsored events. Parents must also be able to agree on disciplinary measures when necessary.

* Holidays and school vacation time will generally be shared, where appropriate, or alternated from year to year.

* Each parent must provide financial support proportional to his or her income. Since co-parenting arrangements generally provide each parent with relatively equal time with the children, time shouldn't be a major factor in allocating child support.

Ultimately, the people who benefit most from a co-parenting arrangement are your children. They will receive all of the emotional and intellectual support that each parent can provide, which can be a salvation for them in the midst of a traumatic divorce.

Content: Divorce Directory

November 29, 2008

Shared Parenting Laws: Will Illinois Ever Consider Shared Parenting?

The State Of Iowa has on its books a Shared Parenting statute. which establishes shared parenting as the presumptively preferred means of custody in Iowa.

Here in Illinois, litigants often times fight custody "wars" over which parent will "win" the custody of the child(ren). As a lawyer and aggressive advocate for my clients, I enjoy a strongly contested case, but the fight over the custody of children is a battle that often should not be fought. Divorce creates enormous personal stresses in families, and the impact of divorce on children is well known. Having parents fight wars for the time with the children seems to me unhealthy, unnecessarily painful, and uselessly costly to families.

There are cases where joint physical custody is not appropriate. The Courts are well prepared to determine these cases. However, it would be a welcome event to see Illinois evolve out of the custody "dark ages," into a more enlightened view toward statutory shared parenting. This would take the fight out of the parenting part of the case.

Below is a proposed Federal statute for shared parenting, from an Iowa shared parenting advocacy group:

Title of Bill:
An Act Relating to Physical Care of Children in Domestic Relations
Be It Enacted By The United States Congress

1 Preamble: An Act relating to joint physical care of children in domestic relations and
2 establishing a uniform federal law creating a rebuttable presumption that a request for joint
3 physical care is in the best interest of the child.
5 SECTION 1: This act may be cited as, "Shared Parenting bill."
7 SECTION 2: In any domestic relations proceeding, the states shall award joint physical
8 care to both joint custodial parents upon the request of either parent during the proceedings
9 on the initial dissolution petition or during the proceedings on a modification of the original
10 custody order.
12 SECTION 3: A rebuttable presumption exists that a request for joint physical care by either
13 parent is in the best interest of the child, the burden of proof to rebut the presumption rests
14 on the party denying that joint physical care is in the best interest of the child, and such
15 party shall demonstrate that joint physical care is not in the best interest of the child by clear
16 and convincing evidence.

Continue reading "Shared Parenting Laws: Will Illinois Ever Consider Shared Parenting?" »

April 12, 2007

Illinois Grandparents Rights

The area of Grandparents Rights to custody of grandchildren and visitation with their grandchildren is a compelling area of the law. Is it not true that many children have been raised successfully by their grandparents? How many children look to their grandparents for mentoring, guidance, and love...sometimes qualities not received from their own parents?

The law presently favors the "superior rights" of a natural parent over the rights of grandparents. This seems to to be the law in most states, since the US Supreme Court decided a case concerning the constitutional rights of parents to make decisions about their children, to the exclusion of the rest of the family. There are exceptions to this general rule, but the exceptions are narrowly drawn.

There is a 2007 version of the Grandparent Visitation Act:

Continue reading "Illinois Grandparents Rights" »

January 28, 2007

High Conflict Custody Cases and PAS

It has been my experience that roughly 10-20 percent of divorce cases involve a high conflict custody issue. A percentage of these cases involve a very serious and negative phenomenon: Parental Alienation. What is Parental Alienation?

The authors below describe PA in terms of an alienating mother, though I have had cases involving an alienating father, as well. Co-morbid with the PAS has been the possibility of an Axis 2 Personality Disorder, and these disorders present in both men and women. I have written in the field of Axis Two disorders and issues concerning PAS. My friend Bill Eddy's book, Splitting, is the best resource that I know of for divorcing parents dealing with PAS.

The information below came from an article describing Dr. Gardner's observations about PAS in divorce cases. Are you a nonresidential parent experiencing PA? Help is available.

Continue reading "High Conflict Custody Cases and PAS" »

November 25, 2006

Holidays a Time for Concern over Visitation

The holiday season begins, and for many people in a divorce or in the aftermath of a divorce, the season raises concerns and stresses beyond the usual stresses of the holidays. Some of the concerns develop over the sharing of the holidays with children. Which parent will have the children on which days? Do the parents split Christmas Day, or alternate it each year? Whose church, synagogue or temple will host the children this holiday?

Judges are especially attuned to the holiday is during this time of year that many courtrooms are filled with litigants...parents seeking a ruling on whether a parent can travel with the kids to New Jersey this year, to see aging relatives for the holidays, for example. Mnay of the judges will refuse to hear new cases once their holiday dockets fill up.

What to do with your new and worrisome holiday concern?

Continue reading "Holidays a Time for Concern over Visitation " »

November 5, 2006

Divorce Practice Must Lead to Resolution of Disputes

One of the reasons that I have been a proponent of alternative dispute resolution systems in divorce (such as collaborative divorce and mediation) derives from the sheer savings that can accrue to the parties by bypassing stressful and costly litigation, and implementing cutting edge alternative strategies that lead to settlement. Divorce is rough enough on the is a difficult life transition, and when children are involved, the issues concerning custody and parenting plans can really create anxiety and stress. The lawyers should promote positive resolution of difficult issues, when possible.

The story below from California (where I started practice as a domestic violence prosecutor) illustrates what lawyers managing divorce cases should never do: aggravate the already difficult status of the divorce case with outrageous conduct.

.....San Francisco, CA......A California appellate court recently rejected the request of John Fuchs, a divorce attorney, for $250,000 in fees -- and referred him to the State Bar of California for possible discipline -- on the ground that his tactics in a divorce proceeding aggravated a simple case into a costly legal feud that wasted the parties' money.

Continue reading "Divorce Practice Must Lead to Resolution of Disputes" »

October 25, 2006

Guidelines for Divorcing Parents

I have a number of clients who express concern about their divorce and the impact on their children. Are there any guidleines for parents to follow? Below are some thoughts and guidelines for parents anticipating divorce or in a divorce process. Be mindful that there are alternatives to traditional litigated divorce, such as a collaborative divorce. Lowering the temperature on a contested divorce and custody case also has benefits where the children are concerned.

1. Never disparage your former spouse in front of your children. Because children know they are "part mom" and "part dad", the criticism can batter the child's self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent's hostility.

4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

5. At every step during your divorce, remind yourself that your children's interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.

6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.

8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.

9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.

10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent's divorce.

American Academy of Matrimonial Lawyers

October 9, 2006

Mom Moves Far, Far Away...Illinois Relocation Law

One of the best ways that divorcing parents can faciliate a good joint parenting agreement is to live within reasonable proximity of each other. When both parents live within minutes and miles of each other, the parents and kids benefit. Even the best and broadest parenting agreement can be difficult to endure if the parents live at great distance from each other. Conversely, even if the non-residential parent gets a standard "boilerplate" visitation schedule, the parent's life with the kids is enhanced if he/she lives in the same school district as the kids.

The Illinois case of Samardzija illustrates a diffiuclt part of Illinois' removal and relocation law. In this case, Mom moved from (for example) Gurnee, Illinois to Carbondale. The move then caused non-residential parent, Dad (a Gurnee resident), to drive hours to see his kids, when previously the drive had been only minutes. The move to Carbondale, in effect, stripped Dad of his parenting role with the kids. In Illiniois, the mother's move to Carbondale was legal, and required no permission from the court. Mom moved, the kids said goodbye, and that was the end of Dad's parenting life, as he knew it.

The Samardzija court reasoned that while parties in divorce can agree to geographical limitations when there is a specific need to do so, absent such agreement, Illinois imposes no restraints on a custodial parent from moving to the opposite end of the state, if he/she so chooses.

Continue reading "Mom Moves Far, Far Away...Illinois Relocation Law" »

October 9, 2006

Illinois Custody and Superior Rights Doctrine

In re Custody of T.W. is an interesting analysis of the superior rights doctrine, and how this doctrine, that substantiates the rights of biological parents, can be trumped by a best interests test.

What do I mean by this? In this case, a child's mother voluntarily surrendered custody of her child to her parents. The grandparents raised the child, and later, when the grandparents went to court toget cusotdy of the child formally (with the mother's consent) the father objected. The superior rights doctrine establishes a presumption that a biological parent is the best person to raise a child. However, as in this case, this presumption can be overridden by a finding by the court that the child's best interest is paramount to the, less than absolute, doctrine of superior rights.

Thus, the superior rights doctrine is not so superior, after all. Should the court find that the child's best interest is met by being raised by someone other than the biological parent, the court can override the parent's claim and award to the party meeting the best interests test.

October 2, 2006

Child Custody: The Role of the Psychologist/Evaluator

The Role of the Child Custody Evaluator: APA Guidelines

A. The role of the psychologist is that of a professional expert who strives to maintain an objective, impartial stance.
The psychologist does not act as a judge, who makes the ultimate decision applying the law to all relevant evidence. Neither does the psychologist act as an advocating attorney, who strives to present his or her client's best possible case. The psychologist, in a balanced, impartial manner, informs and advises the court and the prospective custodians of the child of the relevant psychological factors pertaining to the custody issue. The psychologist should be impartial regardless of whether he or she is retained by the court or by a party to the proceedings. If either the psychologist or the client cannot accept this neutral role, the psychologist should consider withdrawing from the case.

B. The psychologist gains specialized competence.

A psychologist contemplating performing child custody evaluations is aware that special competencies and knowledge are required for the undertaking of such evaluations. Competence in performing psychological assessments of children, adults, and families is necessary but not sufficient. Education, training, experience, and/or supervision in the areas of child and family development, child and family psychopathology, and the impact of divorce on children help to prepare the psychologist to participate competently in child custody evaluations. The psychologist also strives to become familiar with applicable legal standards and procedures, including laws governing divorce and custody adjudications in his or her state or jurisdiction.

Continue reading "Child Custody: The Role of the Psychologist/Evaluator" »

October 2, 2006

When Child Custody is in Dispute: APA Guidelines

The majority of child custody disputes are settled, through negotiation, mediation, or collaboration on a parenting plan that works for both parents. When the issue of custody is not resolved, it is my practice to petition the court to engage a highly qualified custody evaluator (a specially trained psychologist) to furnish recommendations regarding the best interest of the child(ren) to the court. The American Psychological Association has developed guidelines for the the custody evaluation.

I. Orienting Guidelines: Purpose of a Child Custody Evaluation

1. The primary purpose of the evaluation is to assess the best psychological interests of the child. The primary consideration in a child custody evaluation is to assess the individual and family factors that affect the best psychological interests of the child. More specific questions may be raised by the court.

2. The child's interests and well-being are paramount.
In a child custody evaluation, the child's interests and well-being are paramount. Parents competing for custody, as well as others, may have legitimate concerns, but the child's best interests must prevail.

3. The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit.
In considering psychological factors affecting the best interests of the child, the psychologist focuses on the parenting capacity of the prospective custodians in conjunction with the psychological and developmental needs of each involved child. This involves (a) an assessment of the adults' capacities for parenting, including whatever knowledge, attributes, skills, and abilities, or lack thereof, are present; (b) an assessment of the psychological functioning and developmental needs of each child and of the wishes of each child where appropriate; and (c) an assessment of the functional ability of each parent to meet these needs, including an evaluation of the interaction between each adult and child.

The values of the parents relevant to parenting, ability to plan for the child's future needs, capacity to provide a stable and loving home, and any potential for inappropriate behavior or misconduct that might negatively influence the child also are considered. Psychopathology may be relevant to such an assessment, insofar as it has impact on the child or the ability to parent, but it is not the primary focus.

Continue reading "When Child Custody is in Dispute: APA Guidelines" »

October 2, 2006

Father Blocks Daughter's Move-Away

Do unmarried fathers have the right to stop the move away of a child that they love, and with whom they have had a strong parenting relationship? The Illinois Appellate case of Fischer v. Waldrop illustrates the principle that a father, though he be unmarried to the mother of his child, may enjoin the move-away of a child to another state.

In 2003, the Illinois legislature amended the Parentage Act to specifically address removal. In particular, the legislature amended section 14 of the Parentage Act, pertaining to judgments, to provide that "[i]n determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the [Marriage Act], including [s]ection 609." 2003). Finally, the legislature added a new section, which provides, in relevant part:

"(a) In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin removal of a child, the [c]ourt shall consider the following factors, including, but not limited to:

(1) the extent of previous involvement with the child by the party seeking to enjoin removal;

(2) the likelihood that parentage will be established; and

(3) the impact on the financial, physical, and emotional health of the party being enjoined from removing the child.

(b) Injunctive relief under this Act shall be governed by the relevant provisions of the Code of Civil Procedure

Continue reading "Father Blocks Daughter's Move-Away" »

September 27, 2006

DuPage Custody Case: Ethnic Identity a Factor?

Despite the recommmendations of two custody evaluators that a DuPage County father have the primary residential custody of a two year old daughter, the court awarded custody to the mother, based in part, on the fact that the mother and child shared an African-American heritage.

The question arises in all custody cases as to what is in the developmental best interest of a child. Which parent, the court must find, is best suited to provide a parenting environment to meet the developmental best interests of the child? Most courts will, on petition of the parties, appoint a specially trained psychologist to evaluate the factors that the court must consider in an award of custody. Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602(a) (West 2004)) provides that the court shall consider all relevant factors, including:

"(1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing abuse ***; and (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child"

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