If you are concerned about the other party’s ability to make parenting decisions that are in the best interest of your child/children, it is important for you to understand the parental decision-making section of the new statute, effective January 1, 2016. This section is an extensive revision of the former custody provisions. In addition to clarifying the confusion that stemmed from the term custody, the new statute provides greater flexibility with respect to allocating decision-making among the parties, fosters cooperation between the parties, and elaborates upon the factors used to determine the best interest of the child as it relates to how decision-making is most appropriately allocated.
Under the new statute, the court shall allocate decision-making responsibilities according to the following four categories. The four primary categories of significant issues are as follows:
(1) Education, including the choice of schools (elementary, junior high school, and high school) and tutors.
(2) Health, including all decisions relating to the medical, dental and psychological needs of the child and to the treatments arising or resulting from those needs.
– If the parents have an express or implied agreement with respect to decisions regarding religion, the agreement shall govern.
– In the absence of an express or implied agreement between the parents, the court shall consider evidence of the parents’ past conduct as to the child’s religious upbringing.
– The court shall not allocate any aspect of the child’s religious upbringing if it determines that there is no agreement for such religious upbringing or there is insufficient evidence to demonstrate a course of conduct regarding the child’s religious upbringing. (This section could be interpreted a number of different ways. For example, does this mean that there is no allocation of this decision making category to any parent and the parents may do as they chose during their time? Or is there another alternative?)
(4) Extracurricular activities.
One of the key differences between the former statutory provisions and the new statute is that the new statute seems to recognize the need for more flexibility. In allocating significant decision-making responsibilities, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child. However, nothing in the new statute requires that each parent be allocated decision-making responsibilities (meaning the court is not required to allocate any such decision-making responsibilities to a parent if it is not in the best interests of the child). The court determines the allocation of parental responsibilities unless the parents have otherwise agreed in writing on an allocation of significant decision-making responsibilities or this issue has been reserved for determination at a later date.
Problems may arise when certain significant decision-making responsibilities overlap. Consider the following examples:
The parent allocated educational decision sends the child to a religion-specific school, but the parent allocated religious decisions is of a different religion and does not want the child influenced by this religion-specific education.
The parent allocated religious decisions wishes for the child to follow their religion, which does not partake in modern medicine practices, but rather participates in alternative/traditional medicine. This would cause problems if the other parent was allocated health decisions and wants the child to receive modern medicinal treatment as soon as possible when a health concern arises.
Statutory ambiguities and the courts’ differing interpretations of the statute’s meaning and/or intent make it especially important to have a sharp, forward-thinking attorney who listens to you, understands your concerns, and forms well-articulated arguments on your behalf. If you are contemplating divorce, call Koth Gregory & Nieminski at 309-828-5090.
In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:
(1) The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making; (the new statute [effective 1/1/16] gives courts guidance when weighing the child’s preference)
(2) The child’s adjustment to his or her home, school, and community;
(3) The mental and physical health of all individuals involved;
(4) The ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
(5) The level of each parent’s participation in past significant decision-making with respect to the child; (the new statute [effective 1/1/16] has added this factor)
(6) Any prior agreement or course of conduct between the parents relating to decision-making with respect to the child; (the new statute [effective 1/1/16] has added this factor)
(7) The wishes of the parents;
(8) The child’s needs; (the new statute [effective 1/1/16] has added this factor)
(9) 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;
(10) Whether a restriction on decision-making is appropriate. Restrictions are appropriate when, after a hearing, the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development. If restrictions are appropriate, the court shall enter orders as necessary to protect the child; (the new statute [effective 1/1/16] has added this factor)
(11) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(12) The physical violence or threat of physical violence by the child’s parent directed against the child;
(13) The occurrence of abuse against the child or other member of the child’s household;
(14) Whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; (the new statute [effective 1/1/16] inquires into the nature of the offense and whether the parent successfully participated in treatment)
(15) Any other factor that the court expressly finds to be relevant.
There are other factors that may be considered and the court, upon a motion, may consider the evaluation of a party’s retained professional specialist.
Under the new statute, a parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time. While this may seem intuitive, it was not previously codified by statute.
If you (or someone you know) need a divorce attorney in Bloomington, IL, contact the family law firm of Koth Gregory & Nieminski at 309-828-5090. Let us ease your burden and be your advocate.
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