By Jordan Levey
In divorce and parentage cases, Allocation of Parental Responsibilities (“APR”) describes what was formerly known as “custody” in Illinois. APR can be one of the most emotional and contentious components in family law cases. However, the goal is to create a parenting plan that’s in the best interests of the child(ren). APR addresses two main categories of child-related issues: (1) decision-making responsibility and (2) parenting time:
- Decision-Making Responsibility: The decision-making component of APR is governed by Section 602.5 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”). There are four major categories of significant issues affecting minor children: (1) Education, (2) Healthcare, (3) Religion, and (4) Extracurricular Activities. For each issue, it needs to be determined whether the parents will share joint decision-making responsibility or whether one parent will have final decision-making authority regarding that issue. Regardless, both parents will have the right to be consulted and kept informed regarding all major decisions affecting their child(ren). If the parents cannot agree on who will have decision-making responsibility, then the Court can step in and make a determination in accordance with the child(ren)’s best interests.
- Parenting Time: The parenting time component of APR is governed by Section 602.7 of the IMDMA. Unless the Court finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child(ren)’s well-being, it is presumed that both parents are fit to exercise parenting time. A Temporary Parenting Time Schedule may be implemented while the case is pending. Ultimately, it is necessary to determine both a regular parenting time schedule, as well as a holiday parenting time schedule. If the parents are unable to agree, then the Court can step in and make a determination in accordance with the child(ren)’s best interests. Specifically, the Court will consider the following factors:
- The wishes of each parent;
- The wishes of the child, taking into account the child’s maturity and ability to express a reasoned and independent preference;
- the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;
- any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
- the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;
- the child’s adjustment to his or her home, school, and community;
- the mental and physical health of all individuals involved;
- The child’s needs;
- the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
- whether a restriction on parenting time is appropriate;
- the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;
- the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- the occurrence of abuse against the child or other member of the child’s household;
- whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);
- the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
- any other factor that the court expressly finds to be relevant.
Where will my child(ren) live?
The 2016 changes to the IMDMA eliminated the “residential custody” provision. Instead, one parent’s address may be used as the address of record for the child(ren), usually the parent who has majority parenting time. However, the designation of a parents’ address as the child(ren)’s address of record has no impact on the other parent’s rights or responsibilities.
What if we can’t agree on APR?
If both parents cannot reach an agreement as to decision-making and/or a parenting time schedule, then the Court may require both parents to participate in mediation. Additionally, the Court may appoint someone to represent the child(ren)’s best interests (e.g., child representative, guardian ad litem, etc).
APR, formerly known as “custody,” can be an emotionally-charged area of family law. But it’s important to remember that both parents have a right to have parenting time and to be involved in decision-making, unless the Court finds that a parent’s involvement would be contrary to the child(ren)’s best interests.