I have included below most of the text of the amended Illinois SB 4113, which seeks to establish a rebuttable presumption that an award of equal parenting time to each parent is in the best interests of the minor child(ren) in a divorce case.
For many years, my firm has represented Fathers in complex child custody cases, and in many cases my Dad clients were rightfully awarded the primary custody of their children. I have fought vigorously to level the playing field for my Dad clients through the years, some who faced false allegations, false OPs and other challenges in their divorce cases. These cases can be battles, but with the right strategy and management, the right decisions can be reached in these cases. Equally so, I have fought for women, in their own custody cases, some facing false allegations of parental alienation from a narcissistic husband. My goal has always been to develop strategies for both my male and female clients to combat parental alienation, false allegations, and to create outcomes that serve both my clients and the true best interests of the children.
So with SB 4113, the question becomes whether this legislation will, in and of itself, create that level playing field for parents? I note that many of the more vocal Bar associations have opposed this bill, and I can say that some judges with whom I have discussed this do not favor the bill. But, the idea of such a bill has a lot of favor, especially with men and women who, for too long, have been impacted by a legal system that oftentimes does not serve the best interests of children fully. Will SB 4113 create that foundation so that the court is required to factor in a presumptive 50/50 allocation of time to both parents? I am hopeful that SB 4113 perhaps undergoes some revisions that might make its passage more palatable. I note that a 50/50 presumption is a satisfying idea, but that in many cases, many judges and clinicians do not believe that a 50/50 time allocation is appropriate in most circumstances and with most families. An equalization of time is beneficial where the parents live proximate to each other, where the parents both share positive parenting traits, work schedules can accommodate 50/50 time, the age and circumstances of the kids favor shared time, and myriad other factors that can benefit a true shared parenting environment. I believe that a shared parenting bill could be written that might be more dense, more detailed and more fleshed out that might give a solid and detail-rich shared parenting bill a real likelihood of passage.
I believe in and support shared parenting, in those cases where it is the right thing to do for both parents and kids. In cases where there is negative parenting, parental alienation, and/or domestic violence or psychopathology, I also believe in rooting out these pathologies and restricting parents that harm kids and the other parent.
SB 4113 now moves on to the full house for consideration, and it will be interesting to see whether it reaches the desk of the Governor for signature in its present form.
AMENDMENT TO HOUSE BILL 4113
|
| 2 |
|
AMENDMENT NO. ______. Amend House Bill 4113 by replacing |
| 3 |
|
line 18 on page 7 through line 11 on page 11 with the |
| 4 |
|
following: |
| 5 |
|
"(750 ILCS 5/602.7) |
| 6 |
|
Sec. 602.7. Allocation of parental responsibilities: |
| 7 |
|
parenting time. |
| 8 |
|
(a) Allocation of parenting time. Best interests. The court |
| 9 |
|
shall allocate parenting time according to the child's best |
| 10 |
|
interests. Unless the parents present a mutually agreed written |
| 11 |
|
parenting plan and that plan is approved by the court, the |
| 12 |
|
court shall allocate parenting time. There is a rebuttable |
| 13 |
|
presumption that it is in the child's best interests to award |
| 14 |
|
equal time to each parent. In determining the child's best |
| 15 |
|
interests for purposes of allocating parenting time, the court |
| 16 |
|
shall consider all relevant factors, including, without |
| 17 |
|
limitation, the following: |
|
|
|
|
10000HB4113ham002 |
– 2 – |
LRB100 14598 HEP 38212 a |
|
|
| 1 |
|
(1) the wishes of each parent seeking parenting time; |
| 2 |
|
(2) the wishes of the child, taking into account the |
| 3 |
|
child's maturity and ability to express reasoned and |
| 4 |
|
independent preferences as to parenting time; |
| 5 |
|
(3) the amount of time each parent spent performing |
| 6 |
|
caretaking functions with respect to the child in the 24 |
| 7 |
|
months preceding the filing of any petition for allocation |
| 8 |
|
of parental responsibilities or, if the child is under 2 |
| 9 |
|
years of age, since the child's birth; |
| 10 |
|
(4) any prior agreement or course of conduct between |
| 11 |
|
the parents relating to caretaking functions with respect |
| 12 |
|
to the child; |
| 13 |
|
(5) the interaction and interrelationship of the child |
| 14 |
|
with his or her parents and siblings and with any other |
| 15 |
|
person who may significantly affect the child's best |
| 16 |
|
interests; |
| 17 |
|
(6) the child's adjustment to his or her home, school, |
| 18 |
|
and community; |
| 19 |
|
(7) the mental and physical health of all individuals |
| 20 |
|
involved; |
| 21 |
|
(8) the child's needs; |
| 22 |
|
(9) the distance between the parents' residences, the |
| 23 |
|
cost and difficulty of transporting the child, each |
| 24 |
|
parent's and the child's daily schedules, and the ability |
| 25 |
|
of the parents to cooperate in the arrangement; |
| 26 |
|
(10) whether a restriction on parenting time is |
|
|
|
|
10000HB4113ham002 |
– 3 – |
LRB100 14598 HEP 38212 a |
|
|
| 1 |
|
appropriate; |
| 2 |
|
(11) the physical violence or threat of physical |
| 3 |
|
violence by the child's parent directed against the child |
| 4 |
|
or other member of the child's household; |
| 5 |
|
(12) the willingness and ability of each parent to |
| 6 |
|
place the needs of the child ahead of his or her own needs; |
| 7 |
|
(13) the willingness and ability of each parent to |
| 8 |
|
facilitate and encourage a close and continuing |
| 9 |
|
relationship between the other parent and the child; |
| 10 |
|
(14) the occurrence of abuse against the child or other |
| 11 |
|
member of the child's household; |
| 12 |
|
(15) whether one of the parents is a convicted sex |
| 13 |
|
offender or lives with a convicted sex offender and, if so, |
| 14 |
|
the exact nature of the offense and what if any treatment |
| 15 |
|
the offender has successfully participated in; the parties |
| 16 |
|
are entitled to a hearing on the issues raised in this |
| 17 |
|
paragraph (15); |
| 18 |
|
(16) the terms of a parent's military family-care plan |
| 19 |
|
that a parent must complete before deployment if a parent |
| 20 |
|
is a member of the United States Armed Forces who is being |
| 21 |
|
deployed; and |
| 22 |
|
(17) any other factor that the court expressly finds to |
| 23 |
|
be relevant. |
| 24 |
|
If the court deviates from the presumption contained in |
| 25 |
|
this subsection, the court shall issue a written decision |
| 26 |
|
stating its specific findings of fact and conclusions of law in |
|
|
|
|
10000HB4113ham002 |
– 4 – |
LRB100 14598 HEP 38212 a |
|
|
| 1 |
|
support of the deviation from the presumption. |
| 2 |
|
(b) Restrictions Allocation of parenting time. Unless the |
| 3 |
|
parents present a mutually agreed written parenting plan and |
| 4 |
|
that plan is approved by the court, the court shall allocate |
| 5 |
|
parenting time. It is presumed both parents are fit and the |
| 6 |
|
court shall not place any restrictions on parenting time as |
| 7 |
|
defined in Section 600 and described in Section 603.10, unless |
| 8 |
|
it finds by a preponderance of the evidence that a parent's |
| 9 |
|
exercise of parenting time would seriously endanger the child's |
| 10 |
|
physical, mental, moral, or emotional health. If the court |
| 11 |
|
deviates from the presumption contained in this subsection, the |
| 12 |
|
court shall issue a written decision stating its specific |
| 13 |
|
findings of fact and conclusions of law in support of the |
| 14 |
|
deviation from the presumption |
| 15 |
|
In determining the child's best interests for purposes of |
| 16 |
|
allocating parenting time, the court shall consider all |
| 17 |
|
relevant factors, including, without limitation, the |
| 18 |
|
following: |
| 19 |
|
(1) the wishes of each parent seeking parenting time; |
| 20 |
|
(2) the wishes of the child, taking into account the |
| 21 |
|
child's maturity and ability to express reasoned and |
| 22 |
|
independent preferences as to parenting time; |
| 23 |
|
(3) the amount of time each parent spent performing |
| 24 |
|
caretaking functions with respect to the child in the 24 |
| 25 |
|
months preceding the filing of any petition for allocation |
| 26 |
|
of parental responsibilities or, if the child is under 2 |
|
|
|
|
10000HB4113ham002 |
– 5 – |
LRB100 14598 HEP 38212 a |
|
|
| 1 |
|
years of age, since the child's birth; |
| 2 |
|
(4) any prior agreement or course of conduct between |
| 3 |
|
the parents relating to caretaking functions with respect |
| 4 |
|
to the child; |
| 5 |
|
(5) the interaction and interrelationship of the child |
| 6 |
|
with his or her parents and siblings and with any other |
| 7 |
|
person who may significantly affect the child's best |
| 8 |
|
interests; |
| 9 |
|
(6) the child's adjustment to his or her home, school, |
| 10 |
|
and community; |
| 11 |
|
(7) the mental and physical health of all individuals |
| 12 |
|
involved; |
| 13 |
|
(8) the child's needs; |
| 14 |
|
(9) the distance between the parents' residences, the |
| 15 |
|
cost and difficulty of transporting the child, each |
| 16 |
|
parent's and the child's daily schedules, and the ability |
| 17 |
|
of the parents to cooperate in the arrangement; |
| 18 |
|
(10) whether a restriction on parenting time is |
| 19 |
|
appropriate; |
| 20 |
|
(11) the physical violence or threat of physical |
| 21 |
|
violence by the child's parent directed against the child |
| 22 |
|
or other member of the child's household; |
| 23 |
|
(12) the willingness and ability of each parent to |
| 24 |
|
place the needs of the child ahead of his or her own needs; |
| 25 |
|
(13) the willingness and ability of each parent to |
| 26 |
|
facilitate and encourage a close and continuing |
|
|
|
|
10000HB4113ham002 |
– 6 – |
LRB100 14598 HEP 38212 a |
|
|
| 1 |
|
relationship between the other parent and the child; |
| 2 |
|
(14) the occurrence of abuse against the child or other |
| 3 |
|
member of the child's household; |
| 4 |
|
(15) whether one of the parents is a convicted sex |
| 5 |
|
offender or lives with a convicted sex offender and, if so, |
| 6 |
|
the exact nature of the offense and what if any treatment |
| 7 |
|
the offender has successfully participated in; the parties |
| 8 |
|
are entitled to a hearing on the issues raised in this |
| 9 |
|
paragraph (15); |
| 10 |
|
(16) the terms of a parent's military family-care plan |
| 11 |
|
that a parent must complete before deployment if a parent |
| 12 |
|
is a member of the United States Armed Forces who is being |
| 13 |
|
deployed; and |
| 14 |
|
(17) any other factor that the court expressly finds to |
| 15 |
|
be relevant. |
| 16 |
|
(c) In allocating parenting time, the court shall not |
| 17 |
|
consider conduct of a parent that does not affect that parent's |
| 18 |
|
relationship to the child. |
| 19 |
|
|
| 14 |
|
on page 16, by replacing lines 19 and 20 with the following: |
| 15 |
|
"(a) After a hearing, if the court finds by a preponderance |
| 16 |
|
of the evidence that a parent"; and |
| 17 |
|
on page 18, lines 8 and 9, by changing "clear and convincing a |
| 18 |
|
preponderance of the" to "a preponderance of the". |
Illinois Divorce Lawyer Blog
