I agree that in most situations, dads seem to get less parenting time than mothers do, but generally, there is a reason for that. When it comes to child custody, mothers fight harder for the majority of the parenting time and typically do more of the day-to-day care for the minor children. Dads are making changes however to the way they parent. In the trend I see, dads are coming away with either the majority of the parenting time or at least close to equal parenting time. In years past, there was a division of labor within the household. Dads were going off to work and the mothers stayed home with the children and took care of the household. Even when women entered the workforce, their roles still included taking care of the children. In a divorce situation then, the woman was obtaining the majority of the parenting time, and rightly so. After all, the custody arrangement is supposed to revolve around the best interests of the child and custody went to the parent who did the most for the children. Dads Need to Step Up Knowing this, what steps can dads take to obtain more parenting time? For one, dads need to realize that there is a lot of work entailed in parenting children. Parenting includes going to the water park and playing ball, but it also includes doing homework and taking the kids to the doctor. Dads need to get up in the middle of the night to feed infants and change diapers. When seeking more parenting time, dads have to demonstrate that they are willing to do the hard stuff too. Dads need to get the kids ready for school, help clean the house and make dinner. It does not matter if you aren’t necessarily a good cook, anyone can make pasta. Learn to make a dish and make that your signature meal. Think also of nutrition. You don’t want to be the parent that just feeds your child junk. Don’t Be the "Chocolate Cake Dad" I always think of Bill Cosby’s show where his wife kept after him to feed their children breakfast and he did not want to. He ultimately got out of bed and fed the kids and when his wife came down the stairs, all of his children were at the kitchen table eating chocolate cake. He rationalized this by saying that the chocolate cake was actually nutritious since it had eggs and milk in it. It was a very funny joke and all too often, true. Don’t be the chocolate cake dad. Moms Need to Give Up Control Taking the step from doing very little for the kids and wanting to step up and do more however is often met with resistance from the mother. Dealing with that issue alone deters fathers from being involved, but the father who is seeking more parenting time when there is a break up has to be more involved in the children’s upbringing. Dads often miss out on parenting right from the start. The baby comes home from the hospital and if the mother is breastfeeding, the chore of feeding the baby automatically goes to the mother. I hear a lot of moms complain during the divorce process that the dad never helped before, so why should she give him equal parenting time now? All of sudden, he wants to be involved, and that fact does not rest well with moms. Particularly when an equal division of parenting time means less child support money. A lot of moms enjoy being the primary caretaker and simply do not want to share the responsibility. They like it when the baby can only be soothed by them or when the child is sick, they want their mother and not their father. Knowing this, fathers really have an uphill battle in wresting certain controls from the mother. Dads need to assert some control early so that they can have early bonding time with their child. Discuss Parenting Issues Before Having Children When couples are deciding on a marriage or living together, the advice they typically receive from others revolves around budgets and money. They are told to have a discussion about spending habits and how the money will be controlled because if you cannot agree on simple basic money management, the relationship is doomed to fail. Along with these money topic discussions, couples should also discuss child management. How will child-rearing be handled? Are you on the same page regarding how discipline should be handled? What will be the division of labor? Dads need to make it known early that they have every intention of being apart of child-rearing from the very start. Be the dad that changes diapers and helps bathe the child. Go to the doctor’s visits and engage in discussions of nutrition and other matters that are important to you. In nearly every divorce case I handle, the parents are at odds with how the child will be raised. One parent likes to give the child every toy in the world and the other one is more frugal. This causes unnecessary tension. Discipline and how that should be handled is another sore subject. People decide to have children and never discuss these important topics and when the children are there, they fight about these issues. Soon they seem at odds with every child-related decision. Best Interests of the Child Everyone believes that they are acting in the child’s best interest. However, think hard about your lifestyle and the time you have available when deciding how much time you seek in your parenting order. If you have to work 60 hours a week, then seeking one-half of the parenting time is not in your child’s best interest. If possible, your child needs to spend time with you or the other parent, and not in a daycare center. Dads Bring Different Strengths to Parenting Do not forget, as a dad, you have important strengths when it comes to bringing up the children. You might not be good at cooking, but you can demonstrate how to paint a room, or change a light socket. Make sure that you highlight what you are naturally good at so that you are not minimized. I have a client who put his child in a carrier on his back when he mowed the lawn and then had a toy mower for his daughter to practice on. He is teaching her at a young age about work ethic and she is likely to grow up knowing a lot of different things due to his influence. Everyone is important, make sure everyone knows your strengths and what you can teach your child. Remember that your child needs you. Your child needs both parents and nearly all the studies show that a well-rounded child has access to both parents. Put some thought into what you can do, what you will do, and negotiate for the right amount of time with your child. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/dads-can-obtain-child-custody/
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Many times parties will want to file for custody of a minor child that is not their own biological child. Aunts, Uncles, siblings, grandparents, and other adults often times will find themselves in circumstances where they wish to file for custody. In Illinios there are certain situations where they possibly can obtain custody, but it depends on whether or not they have the standing to file a petition or a new case.
"Standing" and Seeking Custody of a Minor that is Not Your Biological Child In Illinois, you must have standing in order to file for custody of a minor child that is not your biological child. Illinois law prescribes specific situations where a specific type of non-parent may file for custody of a minor child. Generally, if you are a non-parent that wishes to file for custody of a minor child under the Illinois Marriage and Dissolution of Marriage Act, you may only do so if the minor child is not in the physical custody of one of their biological parents. So, for example, if a minor child is in the physical care of their maternal grandmother and paternal grandmother wishes to file for custody, they may do so. If the minor child is in the care of her mother and her paternal grandmother wishes to file for custody under the Illinois Marriage and Dissolution of Marriage Act, they may not do so, because the child is in the physical custody of one of their parents. There is a presumption under the Illinois Marriage and Dissolution of Marriage Act in favor of the biological parent of a minor child. In the event that a non-parent wishes to file for custody of a minor that is not their biological child and minor child is in the care of one of their natural parents, you must meet a much higher standard and prove that the natural parent is unfit. You don’t need to prove that a natural parent is unfit under the Illinois Marriage and Dissolution of Marriage Act to obtain custody, but you do have a rebuttable presumption in favor of the biological parent. Standing to Petition for Visitation of a Child Who is Not Your Biological Child The statute in Illinois governing standing in these sorts of cases is 750 ILCS 5/602.9 of the Illinois Marriage and Dissolution of Marriage Act. This section essentially provides that visitation can be obtained by certain non-parent individuals with a minor child. A petition can be filed by any of the persons enumerated in that section, which is a grandparent, great-grandparent, step-parent, or sibling so long as the minor child is one year old or older and so long as at least one other criteria is met. The other criteria are that a parent is deceased or missing, a parent is incompetent, a parent is incarcerated in excess of 90 days, the parents have been granted a divorce or legal separation or there is a pending proceeding for same involving the child and at least one parent doesn’t object to the visitation. One final situation is when the child is born to unmarried parents who don’t live together, the petitioner is a grandparent, great grandparent stepparent, or sibling of the child and the parent-child relationship has been legally established with respect to the parent who is related to the petitioning party. It is important to note that while there are rules “on the books” regarding third-party parenting time with a minor child when the third party is one of the above-referenced persons, most Courts hesitate to award parenting time to someone who is not a parent of a child because it typically means that at least one parent objects to the parenting time if someone is having to sue for it. (The exception being that if dad passes away and paternal grandmother wants to see the child but mom says no, and there was a prior relationship when dad was alive). The Courts understand that parents have a constitutional right to parent their child in a way that they see fit, so it can be an uphill battle to file these sorts of cases. There have also been appeals where the Illinois statute has been argued as being unconstitutional in the past. So, these are not easy cases to litigate. Standing to Petition for Allocation of Parental Responsibilities for a Non-Biological Child In this scenario, there are only two situations where someone can file for Allocation of Parental Responsibilities for a non-biological child. One person who can file is someone who is not a parent, but who files in the custody where the child is permanently resident or found, as long as the child is not in the physical custody of one of his or her parents. The second type of person who can file for allocation of parental responsibilities is a stepparent, but only if they meet all of the following criteria:
Standing is easy to establish so long as the minor child is not living with a parent at the time the case is filed, for obtaining an allocation of parental responsibilities. However, Courts are often skeptical when awarding a minor child to someone who isn’t a parent, and these cases can likewise be very difficult to litigate. Generally, if you wish to obtain custody of a minor child that is not your biological child, you must research on your own or speak with an experienced child custody attorney in order to determine whether or not you have legal standing to do so. If you are facing an issue such as this and wish to retain counsel, please feel free to call our office to set up a consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/obtain-custody-minor-child-not-biological-child/ An opinion from the 5th District was recently decided in the case of Sandra Schell v. Mark Schell regarding whether an inherited IRA was considered income for child support purposes. The court was required to decide whether mandatory distributions or withdrawals taken from an inherited IRA – individual retirement account – containing money that has never been imputed against the recipient for the purposes of maintenance and child support calculations constitute ‘income’ under 750 ILCS 5/504(b-3) (West 2018) and 750 ILCS 5/505(a)(3) (West 2018). It was held that “gross income” and “net income,” as defined in sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504(b-3), 505(a)(3) (West 2018)), includes distributions or withdrawals taken from a party’s IRA when said IRA only contains money received via inheritance and said inheritance has not previously been imputed on the party as income for the purposes of calculating child support and maintenance. Case Background During the parties’ divorce proceedings, Mark’s mother died and he inherited approximately $615,000. Because it was an inheritance, that money was Mark’s non-marital money. The majority of the inheritance he received was in two IRAs. After he inherited the money, the divorce was finalized. At the time of the divorce, the court made findings that Mark earned a monthly gross income of $8,301.83 from his job, and $462.33 per month in dividends from the inherited IRAs, bringing his monthly gross income to $8,764.16 per month or $105,169.92 per year. When initially calculating child support and maintenance in its October 11, 2016, order, the trial court did not include his inheritance in the equation. Instead, the trial court only included Mark’s dividend earnings from the inherited IRAs. Appeal on Inherited Mandatory Retirement Distributions Both parties asked the trial court to reconsider its ruling. Sandra asked the court to reconsider its ruling not to consider Mark’s inheritance when determining the proper amount of child support and maintenance required to be paid to her. The trial court would not reconsider its prior ruling. Before the trial court had ruled on the motion to reconsider, however, Mark file a motion to reduce the amount of child support and maintenance he was obligated to pay to Sandra. He alleged that his company reduced his income by 20% and also that one of the children was now 18 years old. Even though his company reduced his salary, with the dividend income, his distribution, and draws from the inherited IRAs, Mark was actually in a better spot financially than before. On September 5, 2018, the trial court entered an order declining to include Mark’s inherited mandatory retirement distributions when calculating child support and maintenance. The case went up on appeal. The issue of whether IRA distributions or withdrawals constitute “income” as it relates to child support and maintenance payments is currently unsettled in Illinois. Definition of “Income” for Purposes of Support Payments The term “gross income” has the same meaning in regard to both child support payments and maintenance payments under 750 ILCS 5/504(b-3)(West 2018). The term “gross income” is simply defined in the Act as “all income from all sources.” Id. § 505(a)(3)(A). Our Illinois Supreme Court, In re Marriage of Rogers, 213 Ill. 2d 129 (2004), the court looked at the plain meaning of income. Income is simply something that comes in as an increment or addition, a “gain or recurrent benefit that is usually measured in money.” This includes employment, investments, royalties, and gifts. Even if the money is not taxed to you, it can be called income for child support purposes. Other courts have defined income as a gain or benefit that enhances the noncustodial parent’s wealth. Money Withdrawn from Savings Accounts If a parent is unemployed, they clearly are not receiving income. But if they have a source of money from which they draw income, would that be considered income? Our Supreme Court in McGrath held that “Money that a person withdraws from a savings account simply does not fit into any of these definitions. The money in the account already belongs to the account’s owner, and simply withdrawing it does not represent a gain or benefit to the owner. The money is not coming in as an increment or addition, and the account owner is not ‘receiving’ the money because it already belongs to him.” Inherited IRA Funds are Not Immune from Consideration for Child Support Calculations The appellate court in Schell ultimately ruled that the inherited IRAs (although Mark’s non-marital property) were not immune from later being considered as income for the purposes of determining child support and maintenance. Different Courts Have Different Opinions on Distributions from IRAs as Income or Not In re Marriage of Lindman, 356 Ill. App. 3d 462 (2005) held generally that distributions from an IRA constituted “income” for the purpose of calculating income. That court stated that for child support purposes, such items as worker’s compensation awards, military allowances, deferred compensation payments, and even pensions, constituted “income.” The case of In re Marriage of O’Daniel, 382 Ill. App. 3d 845 (2008) disagreed with Lindman. O’Daniel stated that “Except for the tax benefits a person gets from an IRA and the penalties he or she will incur if he or she withdraws the money early, an IRA basically is no different than a savings account, although the risks may differ. The money the individual places in an IRA already belongs to that individual. When an individual withdraws money he placed into an IRA, he does not gain anything as the money was already his. Therefore, it is not a gain and not income. The only portion of the IRA that would constitute a financial gain for the individual would be the interest and/or appreciation earnings from the IRA.” Now there is a split between the jurisdictions on how the money should be treated. Ruling in the Schell Case This court found that the statutory definition of “income” as found within the Act is broad enough that it includes an individual’s inheritance when determining child support and maintenance. Therefore, because an individual’s inheritance must be considered as income under the Act and, in the present case there is no evidence in the record that the circuit court ever factored the $615,000 inheritance into any child support or maintenance calculations, Mark’s distributions from the inherited IRA will be considered income to him. The appellate court vacated the trial court’s ruling and remanded the case back to the trial court to recalculate child support and maintenance. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/spousal-support/distributions-from-an-inherited-ira-is-income-for-support/ |
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