The legal term “best interests” is a concept that comes up in almost all child-related areas of family law. When making essentially any decision on behalf of a child, the court is going to look at what is best for that child and allow that to guide their rulings. Some issues, like the idea that all parents should provide financial support for their children, are bright-line best interests concepts that have only one interpretation. There really isn’t anyone who would argue that a child doesn’t benefit from financial support from both of their parents. However, many child-related decisions are not so clear and straightforward, which is where the idea of “best interests” really comes into play in custody cases when trying to figure out how to divide up parenting time and decision-making between the parents.
Ideally, both parents will be equally involved in the child’s life — that is the standard under Illinois law and the preference of the judges. However, realistically, not all parents are fit to have equal parenting time or equal decision-making authority, and that is when best interests often come into consideration when deciding how to divide up the parents’ time and authority for the children. What Are the Best Interest Factors? There are a variety of factors that are taking into consideration when determining the best interests on the child, and those factors difference based on whether the judge is allocating parenting time and decision-making authority. Best Interest Factors for Decision-Making Responsibilities Here are the best interests factors that can be considered for decision-making responsibilities under Illinois law:
Best Interest Factors for Allocation of Parenting Time In Illinois, the best interests factors that the court can consider for the allocation of parenting time:
How Do You Show Best Interests of the Child? For both issues, best interests can be proven through evidence and testimony. Evidence can include all kinds of written communications and documents, as well as photos, videos, and the like. It can include the parents’ testimony as well as the testimony of experts like a Guardian ad Litem, therapists, doctors, and parenting evaluators, all of whom can provide information and opinions about the parents’ individual relationship with the child and whether there are concerns about the child spending time with one parent or allowing that parent to make decisions for the child. In some cases, evidence will show concerns for the child’s safety in the care of one parent, which is an issue that often comes into place when there are allegations of substance abuse, abuse, neglect, untreated mental illness, and so on. In these situations, the court may find that the parent is unable to safely care for the child and place restrictions on the parent’s parenting time and decision-making for the child to protect the child from emotional or physical harm. A best interests determination could also directly involve the child, though most parents, attorneys, and judges try to keep the children out of the litigation. However, in some instances the judge may feel compelled to speak with the child directly to get their opinions and input on their relationship with each parent. This is increasingly likely with older children, as they are deemed to have greater authority with the court in where they live and how much time they spend with each parent. Who Determines the Best Interests of the Child? The simple answer is that the judge determines what is in the best interests of the child, as the judge enters the order allocating parenting time and decision-making. However, the judge’s decision can be heavily influenced (though not always) by the opinions and findings of experts, like therapists and parenting evaluators. Judges often rely on those who have worked directly with the family but maintain the position of being a neutral third party, when making decisions about what is best for a child. What is Not in the Best Interests of the Child? First and foremost, it is not in the best interests of a child to be put into a situation where the child could suffer harm, abuse, or neglect due to the parent’s actions. Parents are expected to protect their children from exposure to or risk of harm. When they fail to do that, whether on purpose through abuse or inadvertently through negligence, they stand to lose time with and responsibility for their child even if the child is not injured. Likewise, failure to provide for a child’s basic needs like food, clothing, shelter, medical care, an education, and the like are considered to not be in a child’s best interests. If a parent fails to provide or facilitate these resources, they are generally as not acting in the child’s best interests. Interactions Between a Child’s Parents But perhaps the most common issue that comes up in family law cases when dealing with the issue of best interests is the parents’ interactions with each other regarding their children directly to their children. Parents who actively interfere with or discourage the child from having a healthy, loving relationship with the other parent, either by not allowing them to communicate or have time together or perhaps by disrespecting and disparaging the other parent in front of the child, are often considered to be engaging in alienation. This is severely looked down upon by judges. In some situations, if a parent heavily interferes with the other parent’s time and communications with the child(ren), the court may decide to award majority parenting time and decision-making to the other parents in recognition of the harm caused to a child when they are prevented from having a relationship with both parents. Unless the parents is actively abusive or a danger to the child, parents should be careful about placing limits or restrictions on the child’s ability to maintain a positive relationship with both parents, as that is considered one of the fundamental best interests of all children. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/how-do-you-prove-the-best-interests-of-the-child/
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Maintenance, formerly known as alimony, is a relief granted to a party in a dissolution of marriage case that equitably restores to the party a standard of living to which they became acclimated during the marriage. For spouses going through a divorce in Illinois, questions arise around including maintenance in a divorce settlement. Nothing requires an Illinois Court to award a spouse maintenance, which is why it can be important to have a skilled divorce attorney representing your interests with respect to maintenance during and after your dissolution case.
What You Need to Know About Maintenance There are some important things to note about maintenance in Illinois, that can be surprising: Marital misconduct – by either party – is not relevant. The law is crystal clear here: bad behavior in the marriage does not prevent one party from seeking and being awarded maintenance by the other party. Maintenance can be awarded against a party’s income or property. If the Court in your case finds that the party who should pay maintenance has non-liquid assets – like real estate or fine art – a maintenance award can pull from those assets and are not required to be pulled from a bank or savings account. Gender isn’t relevant .Many people wonder whether there is any gender aspect to the award of maintenance – as in, is it always the husband paying maintenance to the wife or vice versa? The answer is an unequivocal NO. The Court and the law do not care whether you are the husband or the wife, or vice versa. Factors the Court Considers There are some important factors the Court will weigh in determining whether to award a spouse maintenance in a divorce. Although there are 14 total factors specifically listed in the Illinois Marriage and Dissolution of Marriage Act (the “Act”), I highlight just a few for your consideration here:
The right attorney can address each of the statutory factors the Court will need to consider when it considers whether to award maintenance and craft an argument to suit the strengths of each factor. With respect to the third one I listed, a world of meaning is contained within the word “realistic”. If both parties are educated and can foresee working and earning a lot of money in the future, then that “realistic” earning capacity is high. If neither party is educated or independently wealthy, then that “realistic” earning capacity is somewhat lower. If either party is retired or disabled, that will definitely be a factor the Court will need to consider in considering the propriety of an award of maintenance. If the party who would be paying a maintenance award, for example, is disabled and cannot expect to earn significantly more than they are currently earning, then the Court is less likely to impose a judgment on them for maintenance for a former spouse who is able of working and enhancing their own earnings. Is Your Spouse Pursuing An Award of Maintenance? If you are a party defending against a maintenance award, hiring a spousal support attorney who can thoroughly review the other party’s financial affidavits and pleadings is imperative. The party bringing a claim for maintenance has the burden of proving they need the money and should be awarded it. An attorney defending against an award of maintenance should first look at how the party requesting maintenance is spending the money they already have. If they are going on expensive vacations, and spending a lot of money on unnecessary expenses, then a sound argument can be raised that they should not be living the “high life” to the other party’s detriment. In these battles, it’s important to have an attorney who can slice through and really read Financial Affidavits, which are documents the parties create to discuss their monthly income and expenses. An attorney with a critical eye to these documents can very effectively cut into the other party’s request for maintenance by showing that they are not being forthright or intentionally living above their means. Types of Maintenance in a Divorce The Act provides for three types of spousal maintenance:
A fixed-term maintenance award is an amount of money you can expect to receive monthly (or every other week, depending on when the party paying the maintenance is paid), for a set amount of time, usually a matter of years and months. An indefinite term is an award of maintenance that does not have an end-date on it, and continues until a modification by the Court or termination under Section 510. A Section 510 award ends maintenance when a party receiving maintenance experiences a substantial change in circumstances, like when they remarry or gain additional income by a significant factor such that they can provide for themselves. A reviewable maintenance award is quite like a fixed-term award, but the Court sets a time at which the award becomes “reviewable.” At that point, the Court may extend the award, end the award, or modify the amount of the award. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/maintenance-in-divorce-settlement/ Visitation interference occurs when the custodial parent in some way interferes with your ability to spend parenting time with your child or visit with them.
In Illinois, a parent has a couple of options when the other parent interferes with their parenting time. You may proceed with a criminal prosecution or file a motion in the civil court, or do both. Seeking legal advice from a Chicago child custody attorney about your specific situation is an important step to help you determine which route is best. Criminal Action for Visitation Interference To proceed in a criminal court, you first have to convince the police to press charges and write up the report. The State’s Attorney would then prosecute the other parent, and would essentially be your lawyer. They would not represent you per se, but they would be enforcing the law and you would not be required to stand before the court and present the case. Visitation interference is a “petty offense” (like a traffic ticket), and after the parent has been prosecuted for the first two violations, the punishment becomes more severe. Eventually, the charge becomes a Class A misdemeanor which means punishment may be in the form of imprisonment for up to one year or a fine of up to $2,500. File a Civil Action in Family Court You may also proceed in the civil courtroom. Visitation interference (parenting agreement now refers to visitation as “parenting time” since parents don’t “visit” their children) is taken seriously in the civil courts, but you need to take certain steps to ensure that your order is clear enough. Different attorneys will attack this problem in several ways. Should a Petition for Rule (sometimes known as a Petition for Adjudication of Contempt) be filed to hold the other parent in contempt? Or should the parenting agreement itself be modified? Petition for Rule For a Petition for Rule, you have to have a clear order, detailing your parenting time. That is why the courts do not allow parenting agreements to say, “The non-custodial parent is entitled to reasonable parenting time.” What is reasonable to one parent is not reasonable to the other. So you need clarity. Dates, times, who is responsible for picking up the child, and where is the exchange supposed to happen? If you have a clear order, then proceed with your Petition for Rule. You will need to state exactly what part of the order the other parent is in violation of, such as failure to drop the minor child off. This is the hardest part of the case, as the other parent will nearly always say that you are mistaken somehow, or that they were in fact there, but you weren’t. Now you know the other parent is not being truthful, so how do you prove your allegations? Your burden when filing the Petition for Rule is to establish that the parenting agreement was not adhered to, and you also need to show that their failure to abide by the court’s order was done willfully and contumaciously. If you cannot meet that burden, then you might elect to modify the existing parenting agreement instead. If the other parent did not come to the exchange time because your son was at his baseball practice, then a modification of the agreement needs to say that no activities can be scheduled during your parenting time unless you agree. Other parents will take their children to church, let them go to Girl Scouts, or attend a friend’s birthday party before taking them for visitation, stating that these activities are important to the child. Of course, the non-custodial parent’s visitation time is important too, but this type of excuse may allow a custodial parent to skirt the contempt finding. Modifications of the parenting agreement need to take into account these types of excuses and prevent them from interfering with your parenting time. Seek Legal Advice About Visitation Interference If you are experiencing issues with parenting time and visitation interference, be sure to seek legal advice about your options. At Anderson & Boback, our attorneys have helped hundreds of parents and families in Chicago resolve child custody and visitation issues, including visitation interference. Contact us today for a free consultation to discuss your situation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/what-is-visitation-interference-and-what-can-you-do-about-it/#gref We receive inquiries regularly from parents of children in Illinois regarding whether or not they can remove their child from the state of Illinois when they are estranged from their child’s other parent. The answer varies, depending on different situations.
Temporary Removal for a Vacation or Trip Parents are free to remove minor children from the state of Illinois for a vacation or a trip, so long as there is no court order which prohibits them from doing so, and for so long as the travel does not impact the other parent’s parenting time. There is an automatic stay that goes into place when a divorce case is filed, however, so parents should be careful to ensure they are not violating the automatic stay that goes in place when the divorce case is filed. They should ensure that they notify the other parent that they will be traveling, provide an itinerary and any flight or travel information, a phone number where the child can be reached and the dates they will be gone and returning. This should be provided in writing so that the other parent cannot claim they were not notified. In the event that you have a parentage case or divorce case pending and you are seeking to take a trip that would impact the other parent’s time, the safest way to do this is to obtain a court order permitting the travel. This can be accomplished by agreement of the parties, or, worst case scenario, by filing a motion asking the Judge for permission to travel. Relocating a Child During a Pending Case “Relocation” is a legal term in Illinois that refers to removing a child from the state of Illinois for something beyond simply traveling. This term implies it is a more long-term move out of state, such as to permanently reside in another state. Relocation refers to moving a minor child more than 25 miles away from where they currently reside, whether that relocation is outside of the state of Illinois or within the confines of the state of Illinois. For moves greater than 25 miles away from where a child currently lives, a court order is needed before the relocation can occur. In 2022, Illinois statutes were modified to allow for a “temporary” relocation of a minor child, while the bigger issue of permanent relocation is pending. This might allow a parent to move their child for a job, or for a similar reason, before a final relocation is determined. However, if you want to do a temporary relocation, a court order is still required, whether it is by agreement, or by the court hearing a motion on the issue. You cannot move a child more than 25 miles away from where they currently live whether it is within the state of Illinois or outside of Illinois, without some sort of court order authorizing it, or there are serious repercussions (including but not limited to having to send your minor child to live with their other parent, assuming they live in the area where the child was residing prior to the move.) Permanent relocation is similar. It requires the agreement of the parties in a court order, a court order from a Judge granting permission for a permanent move. Planning for a Child Relocation Case In our family law practice, we assist clients regularly in planning for a potential relocation case. This includes figuring out if child relocation is a viable option, and weighing the factors the court will consider when determining a relocation. It is extremely important that a parent seeking relocation not make any “sudden moves” without the Court’s permission. For example, if someone obtains a new job that is in another state, they may not want to buy a property near the new job location until they are certain that the minor child will be able to go with them temporarily. Often jobs are not a great reason to relocate solely on their own because the relocation has to specifically serve the child’s best interests, especially if their other parent lives in Illinois still. Emphasis is given to the child maintaining a close and loving relationship with both parents. The worst scenario is when a potential client comes to us and they have accepted a new job out of state and signed a lease or purchased a residence, only to find out their spouse is objecting to the move after the fact. To stay out of this scenario it is important to consult an experienced attorney from the beginning of a relocation case to determine how this type of scenario can be avoided. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/can-i-take-my-children-out-of-state/ People often are confused about the difference between a Civil Union and a Domestic Partnership, and what their rights are if their partner, to whom they are not married, leaves them or predeceases them. This blog is designed to explain what the differences are between these two types of unions and the repercussions of separations or death on said relationships.
What is a Civil Union? Civil Unions were permitted in Illinois prior to the Supreme Court of the United States recognizing same-sex marriages. The Civil Union laws in Illinois made a civil union available to people of the same sex as well as people of the opposite sex. At the time that the civil union law was enacted, civil unions were not federally recognized, so people who would lose certain federal benefits in the event of a “remarriage” could instead obtain a civil union and wouldn’t have to worry about losing their federal benefits. In the event that someone is in a Civil Union that they want to terminate, it is treated the same as a divorce in Illinois and a Petition for Dissolution of Civil Union must be filed to start the process. The same rights afforded to a divorcing couple are afforded to couples dissolving a civil union, including division of joint property, debts, and the awarding of spousal support, for example. When the Supreme Court of the United States ruled that same-sex marriages would be recognized, the large majority of the benefits of civil unions became obsolete. Statutes were put into effect which allowed civil unions in Illinois to be “converted” to marriages. These marriages, when dissolved, are dissolved just as any other marriages are dissolved in Illinois. It makes no difference that they originated as civil unions. Civil Unions, in our experience, are not widely used today in Illinois, as there generally isn’t a need for them any longer. Civil Unions or Domestic Partnerships? People often confuse Civil Unions and Domestic Partnerships. While some states have Domestic Partnership laws and a process for dissolving a Domestic Partnership, at this point in time, Illinois does not. Couples who reside together and are not married often are surprised to find out that their “domestic partnership” isn’t recognized by the state of Illinois for purposes of benefiting from their partner’s estate upon their death, or upon their breakup or separation. We do not handle “domestic partnership” dissolutions as there is no mechanism under Illinois law at this point in time to divide property amongst parties who live together but never married in Illinois. Domestic partnership laws were primarily put into place to allow unmarried people who reside together to be able to be placed on one another’s health insurance benefits, but that is really it. Illinois does not afford any benefits to people who are in a “domestic partnership”. If parties want to ensure that their partner receives, for example, their 401(k) if they predecease them, the person who owns the 401(k) should do an estate plan which awards this property to their partner, because the state of Illinois does not provide any protections or mechanisms for this person to “inherit” from them, even if they lived together unmarried for the majority of their lives. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/civil-unions-domestic-partnerships-and-property-problems-in-illinois/#gref One of the most hot-button terms in parenting cases in Cook County is “alienation”, meaning that one parent is actively seeking to keep the child from having a relationship with their other parents. The current laws on parenting favor both parents being active and involved in a child’s life, and seeks to give both parents meaningful communication and significant time with the child on a regular basis. When one parent is interfering with the other parent’s relationship with the child, the interfering parent is often accused of failing to facilitate the child’s relationship with the other parent, which is often referred to as alienation in court.
Concerns About Parental Alienation Concerns about alienation come up a lot in family court and they are and should be, viewed with scrutiny. While many parents in family court experience a lot of conflicts and may struggle with encouraging a relationship between the child and the other parent, few rise to the level of actively trying to alienate a child from the other parent through a pattern of withholding parenting time and talking about the other parent to the child in a disparaging and disrespectful manner. However, in some instances, judges have found that one parent’s actions were so egregious that they warranted a dramatic change to the parent’s parenting time schedules in order to preserve the child’s relationship with the other parent and protect the child from continued exposure to such animosity. Parents looking to preserve their relationship with their child need to understand that appropriate co-parenting is a key part of ensuring the protection of that relationship and avoid judicial intervention. What Does It Mean to Facilitate a Relationship with the Other Parent? In parenting cases, judges and child custody attorneys expect both parents to be able to communicate and work together to effectively co-parent their child together, even though they are no longer in a relationship. A significant part of good co-parenting is encouraging your child to have a good relationship with their other parent by working together to address parenting issues, being friendly to each other, talking positively (or at least not negatively) about your ex, and avoiding discussing any conflict between you and your ex in front or around your child. Additionally, parents are expected to facilitate a relationship between their child and the other parent by allowing communications between the other parent and the child via phone, video chat, texting, etc. and encouraging the child to spend time with the other parent. In the context of a family law case, that often means following the court’s orders regarding parenting time and communication with the child and being sure that the child participates in parenting time with the other parent. They can also dial their ex’s phone number so the child can speak to their other parent, or be sure that the child is dressed and ready to be picked up for parenting time. Overall, facilitating parenting time means that the parent with the child is making an effort to ensure that the other parent is able to see and speak to the child, and is not actively trying to keep the child from their other parent or undermine their bond by speaking about them negatively. How Can You Prove Your Ex is Not Facilitating Your Relationship with Your Child? Evidence of a failure to facilitate a parent-child relationship, or parental alienation, can be proven in multiple ways. It can include showing evidence of one parent’s attempt to see the child, and the other parent’s refusal to allow contact, or even respond. Often parents can provide text messages, emails, and the like showing that they have been asking for time with the child and those requests are either being ignored or rejected. These kinds of communications are helpful to show the court that one parent is trying to have a relationship with the child, and the other parent is refusing to facilitate that relationship. Ongoing Non-Compliance With Court Orders In court, failure to facilitate a relationship between parent and child can often be observed by one parent’s ongoing non-compliance with the court’s orders and mandates. For example, the parent with the majority of time with the child may seek to cancel or prioritize other activities or events as more important than the other parent’s parenting time. The other parent may also try to delay the implementation of a parenting time schedule, claiming they or the child are simply “too busy” to make time for the other parent. Some parents will even go so low as to blame their noncompliance on the child, claiming the child just did not want to spend time with their parent as the reason why they violated the court order. It is important to know that judges do not take kindly to having their orders ignored, and especially dislike when parents blame their actions, and inaction, on their children. Alienation Evidence From the Child Sadly, a lot of the time evidence of one parent’s attempts at alienation is often gathered from the child or children. It is common for parents who participate in alienation to speak in a disrespectful or disparaging way about the other parent directly to or in front of the children. Sometimes the parent will express extreme animosity toward the other parent, even going so far as to tell the child they “hate” the other parent. Some parents will actively engage in alienation by telling the child the other parent is a “liar” to keep the child from being able to trust the other parent. In these situations, an attorney for the child, most often a Guardian ad Litem or Child’s Representative, will be appointed to the case to investigate each parent’s allegations and speak with the child to provide the judge with an accurate representation of what is actually happening, and being said, within that family. Can a Child Refuse to See Their Other Parent? In general, the Illinois courts see parenting time as mandatory, and not something that a child can choose to participate in, or not. As the courts believe that, as a general rule, a relationship with both parents is best for the child, the child is expected to follow the parenting time schedule without having a say in what that schedule is. As a child gets older, their preferences, opinions, and requests will be given greater weight by the judges, but often that is only for children who are coming up on eighteen. If a child is refusing to spend time with a parent and is acting out before or after they see that parent, the courts will often try to find out why there is a disconnect and will look for a remedy, most often therapy. In some cases, a parent’s behavior has been so egregious that a child will have qualms about spending time with that parent. That situation often arises if there have been issues of abuse or neglect, or one parent has been disparaging to or harshly critical of the child. There are circumstances when a parent can act in a way that makes the child so uncomfortable that the child is averse to spending time with that parent, at no fault of their co-parent. However, it is more common that children do not want to spend time with the parent because their relationship is strained, which is often the result of systematic alienation by the other parent and long periods of time apart. Failure to Facilitate a Relationship Can Lead to a Change in Custody Trying to cut another parent out of a child’s life, or turn the child away from their other parent, is strongly looked down upon by judges. A history of this behavior, or refusal to facilitate a positive relationship between the child and their other parent can lead to a change in custody both as a remedy to the strained relationship with the alienated parent and in recognition of the toxic environment that the child was being subjected to by their primary parent. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/losing-custody-for-failure-to-facilitate-relationship-with-other-parent/ |
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