Parental Responsibility Allocation & Your Child’s Best Interests
The phrase “best interest of the children” is one of the most often repeated ones in the Illinois Marriage and Dissolution of Marriage Act, as well as divorce orders and other family law decrees that are based on the statute. But how is this defined in practical terms? More importantly, how will this impact your children?
When parties agree on what is best for their children, a court is rarely going to interfere with their agreed decisions absent abuse or neglect. However, parents do not always agree on what is best for their children so the courts have created guidelines on how to handle these situations. It is important to remember that each situation is unique, so your situation will be handled differently when compared to any other person’s situation because it involves different parents, different children, different attorneys, different judges, etc.
What is a Guardian ad Litem?
The fastest and easiest way to resolve parenting issues is by agreement. Sometimes parents are able to reach an agreement on their own or with a little help from their attorneys. If the parents cannot reach an agreement, courts will often send the parties to mediation. Mediation is not always successful. If future mediation is not likely to help, you will proceed to the next option.
Most judges in Will County and nearby jurisdictions appoint guardian ad litem (commonly called a “GAL”) in contested cases. Typically, their fees are assessed as court costs in the divorce litigation or otherwise divided between the parties.
A GAL is a lawyer the court chooses to help make decisions for someone who might need extra support. The GAL does not represent either parent’s interest, but is entrusted with being the “eyes and the ears” of the court so that they can make recommendations to the Judge. The GAL listens to everyone involved and makes recommendations to the parties involved and to the judge who will decide what is in the child’s best interest if the parties cannot agree.
What is a Guardian ad Litem’s Duties?
Their duties vary among counties, and sometimes even among individual cases in the same court. Some GALs interview witnesses, review discovery documents, and thoroughly investigate the facts to prepare a report that they submit to the attorneys and to the trial judge. Regardless of their specific duties, the GAL’s overall duty is to uphold the best interest of the children.
When it comes to determining the best interest of the children, especially in custody matters, many judges give a great deal of deference to the recommendations of the GAL. However, it is important to know that the GAL never makes final decisions; they can only make recommendations to the judge, who can decide in any manner consistent with the evidence presented. .
Factors to Consider
The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/) provides factors, which include but are not limited to:
- Wishes of the child: Depending on the age and maturity of the child, their preferences may be considered. Generally, the older the child, the more say the child has in a Parental Responsibility Allocation decision.
- Wishes of the parents: What both parents want in terms of custody or visitation. Does the parent want custody of the children, or does the parent not want the other party to have the children? There is a definite difference.
- The child’s adjustment: How well the child is doing in their current school, community, and home. Most judges value stability, so they will act to preserve the status quo if at all possible.
- Mental and physical health: The mental and physical health of all individuals involved, including parents, the child, and any other pertinent individuals.
- History of violence or threat of violence: If either parent has a history of violence or has made threats, this can heavily influence the decision.
- Ability of parents to cooperate: How well the parents can work together for the benefit of their child. An overaggressive lawyer is often a disservice in a family law case because most judges want to give custody to parents that will work with the noncustodial parent and encourage a relationship between that parent and the children, to the greatest extent possible.
- Level of each parent’s participation: Past involvement and anticipated future involvement in the child’s life.
- Distance between the parents’ residences: This relates to the feasibility of shared custody arrangements.
- Physical violence or threat of physical violence: By the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.
- Any occurrence of abuse: Whether directed against the child or another person in the household.
- Ability of the parent to provide a stable environment: This includes not just the home itself but also the general living conditions and social factors.
- Any other factor: Courts can consider any other factor they believe to be relevant to the particular case.
It’s essential to note that the above list isn’t exhaustive, and courts will often consider the totality of the circumstances when making their decision. Also, laws can change over time, so if you’re dealing with a specific situation, it’s crucial to consult with a family law attorney who is up-to-date with Illinois law and can provide guidance tailored to your individual situation.
When Does the Court Decide Based on ‘The Best Interest of the Child’?
The considerations used to determine what is in the best interest of the child are applied in any Illinois family law case involving how parental responsibilities are shared or how parenting time with the child is divided. – often referred to as “custody matters” even though custody is no longer officially used in our laws.
Although many people may think of parental responsibility as custody, Illinois doesn’t use these terms in the same way. Instead, Illinois breaks down “custody” into two main aspects:
- Parental Decision-Making: Technically called “Allocation of Parental Responsibilities.” This involves each parent’s role in making significant choices for their child. These choices encompass important matters such as a child’s healthcare, education, religious upbringing, and extracurricular activities.
- Parenting Time: This refers to the periods when each parent spends time with the child, including during the school year, school breaks and holidays. It also involves the day-to-day care and decision-making for the child’s routine activities.
How Does the Court Decide “The Best Interest of the Child”?
There are additional steps that a court can consider before making a final decision. For example, under 750 ILCS 5/604.10, the Court can appoint professionals to conduct testing on the parties and to make additional recommendations to the court. These evaluations are commonly referred to as 604.10 Evaluations (current statute) and 604(b) Evaluations (previous statute.
If the parties have gone through all or most of the steps above and they still cannot agree, the trial judge will be tasked with the responsibility of making the final decisions. This means that the parties will have to schedule a trial. At trial, both parties will testify, present evidence, have witnesses testify, and attempt to convince the judge based on the facts and the law that their position is correct. When possible, trial should be avoided because it is very time consuming, a significant investment of financial resources, and filled with anxiety because the outcome is out of your control. However, trial cannot be avoided at times so it is vital that you have attorneys with experience actually taking cases to trial.
Legal Counsel that Prioritizes Your Child’s Best Interests
In navigating the intricate path of parental responsibility allocation and ensuring your child’s welfare during divorce or family law matters, understanding the concept of the “best interest of the child” is pivotal. This guiding principle underscores the importance of creating an environment where your child’s needs and development take center stage.
As you embark on this journey, seeking professional guidance can provide you with the insights and strategies needed to navigate this intricate terrain effectively. Our experienced team at Reidy Law Office are dedicated to offering you the support you require during these challenging times. With a deep understanding of Illinois family law and a commitment to serving your family’s best interests, we are here to help you make well-informed decisions that positively shape your child’s future.
For a confidential consultation with an experienced family law attorney in Will County, contact attorney Brian Reidy. Our office extends convenient payment options, ensuring accessibility to professional guidance during challenging times. Discover the path forward for safeguarding your child’s best interests.