Articles Posted in Child Custody

Many of the cases that I manage involve securing the involvement of a Guardian ad Litem, or as is typically done in Cook County, a Child’s Representative. Many clients have questions about the role of the GAL or Child’s Rep, and the function of these individuals in the contested divorce and child custody issues.

The GALs and Child’s Reps (CR) are attorneys with family law experience, who must undergo some minimal training in order to be certified to be on the “list” of GALs/CRs in each judge’s courtroom.  Many judges have preferences to appoint certain individuals in their cases, as there can be a belief with some judges that certain GALs tend to be more successful settling contested cases. In my view, the goal in obtaining an appointment of a GAL or CR is to suggest to the court a GAL or CR that has deep experience, has shown good judgment and diligence with past cases, and can be trusted to do the investigation and reporting and recommendations to the court well.  My experience working with many fine GALs and CRs over the past decades has provided me with an opportunity to know the competent GALs well, and to work to have the best possible investigation and recommendations that serve the children, in my cases.

Here is a definition provided, that describes the functions of these court appointed investigators:

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.

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.

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.

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.

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.

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 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.”