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Illinois Divorce: Shared Parenting Bills

The Illinois legislature is considering now a Shared Parenting bill that would create a legal presumption that shared child custody and parenting would be the “presumed” status for divorcing parents, absent a showing that such shared parenting is not appropriate.  I have had a chance to discuss this bill with some of the judges with whom I appear before (it’s not unusual for experienced lawyers and judges to talk about important issues in private settings, without discussing specific cases).  I’d say that the majority do not support presumptive shared parenting, insofar as the limitations created by such a bill would be problematic in ways that are discussed in the article, below.

The other side of the coin with this issue is that, in my experience, without  “push” from the legislature, many judges still consider some parents as “visitors” in their children’s lives and resort to recommending parenting schedules that are anachronistic, and akin to the “standard order” visitation schedules that were common in the last century in many Illinois counties.

In my practice, my approach and view is that every family system is different, and there is no “one size fits all” approach that works for a parenting plan after divorce.  Many myriad factors need to be evaluated and considered, with the aim of providing the children with the best possible developmental outcome from the divorce of their parents.  For good and loving parents, the children should have substantial contact with both parents; the clinical research supports this idea.  For parents with deficits, or histories of personality disorders, substance abuse, or violence, or traits as parental alienators… the standard is very different, and the parenting plan needs to address these problematic issues, too.

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 — A Kansas legislative committee heard passionate testimony Tuesday from people both for and against a bill that would require courts to order shared custody and parenting of children in most divorce cases.

Senate Bill 257 would create a presumption in divorce cases that children of the couple would spend roughly equal time with each parent, unless the parties have agreed to another parenting plan in advance.

Judges would be allowed to order other arrangements only if there is “clear and convincing evidence” that an equal-time arrangement would not be in the best interests of the child.

Joe Sessel of Topeka takes notes while also tending to his daughter Claire during a committee hearing Tuesday on a bill that would put more pressure on courts to order shared custody and parenting in divorce cases.

Under current Kansas law, child custody cases are governed by what judges determine to be in the best interest of the child. Parenting agreements worked out in advance of a divorce are presumed to be in the child’s best interest, but judges have some latitude if they feel a need to override such an agreement.

 

But judges and lawyers who work in the family court system in Kansas said passage of the bill could create more problems than it solves.

Judge Wayne Lampson, chief judge on the Wyandotte County District Court and a member of the executive board of the Kansas District Judges Association, said it is no longer the case that judges assume one parent or the other should have primary custody over the children and that the other parent should have only limited visitation rights.

He said shared custody and parenting duties were granted now as a matter of course in many cases, especially when the divorcing couple agreed to such an arrangement in advance, unless they found circumstances that indicated such an arrangement was not in the child’s best interest, such as criminal activity, drug or alcohol abuse, or any of several other factors that might come into play.

“This bill, to us, appears to override all those presumptions and put in shared custody as the top priority,” Lampson said. “Not only for good fathers — and we heard several good fathers testify here today. Our concern is, what about the bad fathers? The bad fathers are given 50-50 (custody) the same way, or at least that’s the presumption.”

Ron Wilson, who spoke on behalf of the Kansas Bar Association, said the statewide association of attorneys opposed the bill because it presupposed how all divorce cases involving children should be resolved.

“Presumptions inherently don’t do families well,” he said. “Children are not cookies. Children are not malleable flour, and a cookie-cutter solution for every family in the state of Kansas does not do children well.”