A common question asked in child custody proceedings is “what are fathers rights?” Contrary to what some may believe, Illinois Family Law does not favor mothers or fathers with regards to custody arrangements. In fact, the analysis that judges use in these proceedings are gender neutral.
How Child Custody is Determined
When determining a child custody arrangement, Illinois judges will consider what is in the best interests of the children. The court will examine the facts in each case and consider such factors such as:
1) parents’ wishes as to the arrangement of parental responsibilities
2) wishes of the child
3) child’s adjustment to his/her home and school
4) mental and physical health of all individuals involved
5) physical violence or threat of physical violence by the child’s potential custodian, and
6) any other relevant factors which would help determine what is in the child’s best interests
After looking at the best interest factors, the judge will determine how to best arrange decision-making responsibilities among the parents over the major areas of the child’s life. These major areas can include education, health care, extracurricular activities, religious upbringing and choice of day care or babysitter. The judge can determine that both parents should equally share decision-making responsibilities for all areas, that the decision-making for each area be assigned to a particular parent, or that only one parent should be responsible for all areas.
The child will typically live with one parent the majority of the time. The parent who has the child majority of the time will typically be awarded child support from the other parent.
As you can see, the best interests factors do not make mention of “mother” or “father.” At Bugarsky & Navarro, LLC our family law attorneys passionately advocate for the rights of our clients, both mothers and fathers. We have seen cases where the best interests of the children resulted in the father being granted the majority of parenting time, and cases where it was best for the children to live primarily with their mother. In all cases, the judges use the best interests standard in making their determination, not the gender of the parent.
Visitation Rights/Parenting Time
Illinois law strongly encourages the involvement and cooperation of both parents in the upbringing of a child. Therefore, a parent who was not granted the majority of parenting time will typically be granted the right to a reasonable parenting time schedule with the children. A common parenting time schedule is every other weekend, one or two days during the week, alternating years with the child on major holidays, and alternating years on the child’s birthday.
In determining the parenting time schedule, including pick-up and drop-off times, the judge may consider such factors as the age of the child, the child’s school schedule, and both parents’ work schedule. In determining the pick-up and drop-off times for the holiday schedule, judges may also look at whether there are any family or cultural traditions which have been observed in the past.
Courts are reluctant to restrict a parent’s rights to see his or her. Parenting time rights will only be restricted in circumstances where a parent poses a physical or psychological danger to the child. In such cases, supervised visitation may also be ordered. However, the limitation on parenting time rights would only be ordered after a hearing in which both sides would be given the opportunity to present evidence, witnesses, and argue their positions before a judge.
Relocation of a Child’s Residence
A parent who was granted the majority of parenting time can only relocate his or her residence with the child in accordance with Illinois law. Depending on where the parent and child live, the parent may have to get the signed written permission of the other parent before he or she moves. If the parent lives with the child in Cook, Dupage, Kane, Lake, McHenry or Will County, and wishes to move more than 25 miles, he or she must get signed written permission from the other parent. If the parent and child live in any other county in Illinois, and the parent wishes to move more than 50 miles from his or her current residence, written permission must be obtained from the other parent. If the parent wishes to move across state lines, to a distance more than 25 miles from the current residence, he or she must also seek permission from the other parent. If the other parent does not agree, the parenting wishing to move must seek permission from the court to relocate with the child.
Reduction of Child Support
The parent who was not granted the majority of parenting time (“payor”) will typically be obligated to pay child support to the other parent. In certain limited circumstances, the payor may be able to have child support payments reduced upon showing of a substantial change in circumstances. For example, if the payor becomes unemployed or experiences a significant reduction of income, due to circumstances beyond his or her control, a judge may agree to reduce child support payments to a lower rate. However, if the payor did not have a good faith reason for experiencing the reduction of income, the court will likely not grant the reduction in child support. Furthermore, the payor may be required to look for a new job and submit a job search log to the court regularly until new employment is found. If payor believes he or she may qualify for a modification of child support, it is important to act soon, as the current child support obligations will continue to run until a reduction in child support is granted.
Alternating Tax Exemptions
While Illinois law does not specifically provide that the payor parent is entitled to claim the child as an exemption on his or her tax return in alternating years, judges often recommend this arrangement under the spirit of encouraging both parents to cooperate in the upbringing of the child.
If you or someone you know has questions regarding a child custody matter, call us today at (815) 409-8858 or (815) 207-9570 to schedule a consultation with a family law attorney serving Will County, DuPage County, and Kendall County.
The information on this site is not legal advice. Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.