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DuPage Divorce: Is Child Custody Different with Divorce and Parentage?

Questions come up from time to time about how parents are treated in Parentage cases ( where the parents are unmarried) vs. in a divorce case. Should fathers for example, be treated differently in a child custody case if they are not married to the mother of the child or children?  The answer in Illinois, fortunately, is no.  The Illinois Parentage Act borrows and connects with the Illinois Marriage and Dissolution of Marriage Act (IMDMA) and utilizes in Parentage cases the same child custody statutes that are used in divorce cases.  These days, parents are no longer awarded “custody,” but are awarded “allocations of parenting time.”

In a New Jersey case, the Parentage courts were expected to decide child custody issues in a speedy fashion, and it seems that this expedited approach robbed some fathers of the right to have a full hearing over child custody issues. A recent case there made the news, as the appellate court decided that the rules for parentage cases should follow the same rules and due process afforded in a divorce case.  Here’s a summary of that case for those interested in the details:



If the custody or parenting time of a minor child is at issue before a court, should the legal process differ depending on whether the parents of the child at issue were married?

Basic principles of equity, and frankly commonsense, would suggest not. Until recently, however, there has been some debate about whether the process and procedures applicable to New Jersey parents litigating child custody issues as part of a divorce proceeding (under the matrimonial or “FM” docket) should differ to those applied to parents litigating those very same issues but who were never married (under the non-dissolution or “FD” docket). Enter the January 2, 2019 reported (i.e., precedential) New Jersey Appellate Division decision in J.G. v. J.H.

At its most basic level, the Appellate Division decision in J.G. v. J.H. confirms that all contested custody actions should be accorded the same, or a similar, process and be assessed under the same legal standard. If child custody is an issue, trial courts are obligated to apply and make decisions based upon the best interests of the child standard, analyzing the factors set forth in N.J.S.A. 9:2-4(c), regardless of the parent’s marital status or the type of docket (FM, FD or otherwise).

Divorce matters under the FM docket are assigned timeframes and deadlines for exchanging information, conducting appraisals and retaining experts if necessary (referred to as the process of “discovery”). In contrast, FD proceedings are regarded as “summary proceedings,” meaning essentially that they are to be resolved by the Court expediently with no automatic right to discovery. The benefit of a summary proceeding, in theory, is that the case does not drag on for months at a time and the Court is able to make a decision after reviewing the parties’ pleadings and hearing argument from the parties or their counsel. The very significant drawback of a summary proceeding, however, is that an important decision about the custody of a child is made quickly, without discovery or consideration of all relevant factors under N.J.S.A. 9:2-4(c), as was the case with the trial court decision in J.G. For most parents, the drawback of a potentially hasty decision about child custody greatly outweighs the benefit of a potentially expedient resolution. The J.G. Court agrees.

While the J.G. decision may not be stating anything entirely new, it attempts to bring about an end to any lingering confusion in regard to the disparate treatment of parents and children based upon marital status. No matter what type of case, the same rules, process and procedure apply to all child custody matters, with the best interests of the child standard controlling.

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