Custody – Parenting Time
Is one party leaving the home with or without the children considered “abandonment”? The answer is generally ‘No’. Necessarily in a divorce the parties will inevitably at some point live apart. That physical separation must start sometime. There is no automatic “abandonment” concept that will be detrimental to any ultimate physical custody schedule. Leaving the home is not abandonment but staying away from children for long periods of time may reduce the chances of being a primary physical custodian. Practical concerns moving out of the home involve the payment of the mortgage, utilities, and the preservation of personal property within the home. It is conservative to presume that once someone leaves the home, they will have great difficulty getting back in or retrieving all of their personal property to their satisfaction.
- CHILD SUPPORT
In Illinois, child support is based upon a percentage of the payor’s net income. 20% for 1 child, 28% for 2 children. Net income is gross income from all sources, minus federal and state taxes, social security, medical insurance premiums, union dues, mandatory retirement contributions, and repayment of student loans. Household expenses are not considered by the Court in assessing child support. Refer to this Financial Affidavit to calculate your income and expenses.
A Modification of child support is possible retroactive to the date that a Petition for Modification is filed. Child support cannot be changed, suspended, or terminated without a court order. Out-of-court-agreements with the other parent to modify or reduce child support are not binding. A modification of child support can be requested where there has been a “substantial change in circumstances”.
The dependent exemption. A customary method to address the dependency exemption is to rotate it between each parent each year. It does not matter if the child lives with one parent more than the other, that exemption can still be rotated.
Under very limited circumstances, a court can abate child support amounts that are past due. This usually only occurs in a situation where it is discovered that the custodial parent was not taking care of the child during a time that parent was presumed to have custody.
750 ILCS 5/505(a): The court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary educational, physical, mental and emotional health needs of the child.
- CHILDREN FIRST SEMINAR
Supreme Court Rule 924 requires divorcing parents to attend a Children First Seminar and provide a Certificate of Completion. The seminar is a few hour session with information on the effects of divorce on children and suggestions as to deal with common issues. Download the Children First Program information see it in the Forms section.
- Decision Making (formerly Custody)
As of January 2016, Illinois has eliminated the terminology of Custody and Visitation. They are replaced with Decision Making and Parenting Time. Both necessitate consultation and cooperation between parents on significant matters involving children. It does not mean equal physical parenting time and does not affect visitation. Joint Decision Making is limited to major decision making for the child regarding medical, school, religion, and extracurricular. The decision making terms do not change the time spent with the child. The court considers, “the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child.” Despite the terminology, both parents have the right to be informed as to the medical issues of the child, school schedule, activities schedule, and any other events that occur in the child’s life.
- HEALTH INSURANCE
If a child is currently covered with health insurance by one parent, they can (and should) continue to provide health insurance after the divorce or separation. Health insurance is a deduction for purposes of calculating net income for child support. Whoever pays child support is allowed to deduct the full amount of premiums paid each month. Either party may have health insurance for the child and often one policy is primary and the other secondary. Health insurance is a concern for divorcing spouses when one has relied upon the employer-provided insurance of the other. After the divorce, the usual method of addressing bills not covered by health insurance is for the parties to equally split them. Use www.ourchildinfo.com to keep track of health insurance cards, card updates, proof of continued insurance, medical bills and reimbursement.
- INTERVIEW of CHILDREN with JUDGE
In Illinois there is no age at which a child may decide with which parent they shall live. Whether or not the child is able to speak with the judge depends on the maturity of the child and the circumstances of the case. Effort is made to keep the interview informal and, to the extent possible, not intimidating. The child usually meets with the judge in the judge’s office and both attorneys as well as a court reporter may also be present. The judge conducts the interview and generally the attorneys do not ask questions or can sometimes request the judge ask certain questions. The judge will speak with the child about the child’s likes and dislikes and general concerns and activities with each parent. The testimony of the child is not shared with either parent. The “In-Camera Interview” is only a factor to be considered by the judge in making a custody determination and, by itself alone does not determine a final custodial outcome.
Disputed custody and visitation matters must be mediated. A locally approved Attorney will act as a mediator and will meet with mom and dad at the same time. The goal is to develop a physical custody schedule for the children between the parents. If an agreement is reached during mediation we can ask the court to approve the agreement and that will end and resolve the matter. If an agreement is not reached, the case proceeds through its normal course and a Judge will decide.
- PARENTING TIME (formerly custody)
Parenting Time defines the time spent by each parent with the children. Factors the court considers include, but are not limited to the wishes of all parties and the children, the relationship of the children with parents and others that the children has come to know, adjustment to home, school, and community, health of all individuals, potential negative influences on the children, and the willingness and ability of each parent to facilitate a close and continuing relationship between the other parent and the children. Those best interest factors are extensive in scope and each one depends on your particular circumstance. The child’s best interest is often found in the details that make a parent — who has taken the primary responsibility for day to day needs of the children, medical appointments, work schedules, availability, discipline, rules, etc.
750 ILCS 5/600(e) “Parenting time” means the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child.
- REMOVAL OF CHILD FROM STATE
As of January 2016 in Illinois, a custodial parent cannot relocate more that 50 miles away from the child’s current residence. The custodial parent wishing to move has to prove that the move is in the best interest of the child, not the parent. If removal is contested, evidence will need to be presented to the Court as to why the move is in the best interests of the children. Factors that the Court considers include the impact on the quality of life for the removing parent and the children, a comparison of schools and activities available to the children, employment and motives of both parties, remarriage and stability of the children, the ability to maintain a reasonable visitation schedule, the involvement of both parents and the activities of the children, and any other relevant considerations. Warning: in a circumstance where the parents were never married and nothing has been filed in court, the mom may not need permission to relocate. Call me for a free consultation on this or any other family law matter.
- SOCIAL MEDIA and EMAIL
Do not post anything online, E-mail or text messages that you don’t want read in court. Posting negative comments or even general comments on social networking sites can easily multiply into larger problems. If a negative conversation emerges and any children at issue happen to see it, it certainly does not help to settle any pending custodial issues and more likely than not causes a detriment, delay, and bad feelings between the involved parties. It is best to keep your animosity to yourself for the benefit of children. Online accounts are often available to the attorneys and Judges as well. Likewise, leaving a recorded voice message or a text message is a clear implication that you know you are being recorded and that recording can be admissible in evidence. This is the converse of you or someone else not knowing they are being recorded.
Witnesses should testify about their direct observation of the child with the parent. A witness who only has an opinion as to “what kind of a person” one parent is, is not helpful. The best witness is one who can testify to direct observation of an incident, event, or anecdote involving the child and one of the parents. Examples include a witness that can confirm that one parent was at every ball game and every school function and that the other parent never showed up. We do not need “character witnesses”. Any witness you call will likely already have good things to say about you and that self-serving style of witness is unnecessary.