Determining Parental Responsibility & Parenting Time in IL
Divorcing or separating parents with competing claims concerning parental decision-making responsibilities and rights to parenting time will be subject to a judicial determination regarding such issues in the event they cannot reach an agreement. When a court intervenes to resolve issues concerning the care of a minor child in a divorce, the law requires a judge to anchor the inquiry on the best interests of the child.
Historically, issues regarding a parent’s rights and responsibilities regarding their decision making rights and parenting time were referred to as “child custody” and “visitation.” However, recent legislative measures concerning the IMDMA recoined those concepts as “parental decision-making responsibility” and “parenting time” respectively.
Under Sections 602.5 and 602.7 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), courts must consider over a dozen factors when deciding what parenting arrangement.
Generally, the statutory factors relate to the following matters:
- The minor child’s preferences and needs
- The health of the parents and the child
- The parents’ ability to cooperate regarding decision-making responsibilities
- The physical distance between the parents
- Any history of domestic violence or abuse
However, a court order regarding the parental rights and responsibilities of the parties may be effective for years after a divorce has been finalized. Unless the parties live completely static and unchanging lives, the circumstances that a court considered when issuing an order for parenting time might change, making compliance with the original order impractical.
Modification of Parenting Time (Visitation Rights) in Illinois Under the IMDMA
Generally, court orders relating to divorce issues like alimony, child custody/visitation, and child support may be modified if, since the date the court issued its orders, circumstances have changed requiring modification of the order’s terms. However, the modification of a custody order is subject to limitations under the IMDMA.
According to Section 610.5 of the IMDMA, “no motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.”
Simply put, the terms of an order regarding the parties’ rights and responsibilities regarding parental decision-making authority (custody and visitation) cannot be changed for 2 years, except in situations posing a risk to the child’s safety and welfare. This preserves the court’s focus on considerations regarding a child’s best interests.
However, when it comes to orders concerning parenting time rights, the IMDMA is not as strict, providing that “[p]arenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.”
In either case, the court has the discretion to deny modification requests provided that they do not serve the best interests of the child.
Changed Circumstances that Justify Modification of Custody & Parenting Time (Visitation)
Usually, a party must provide sufficient evidence of changed circumstances in order to modify a court order regarding the parental decision-making responsibilities and parenting time of a party. However, the IMDMA authorizes a court to modify parenting plans in the absence of a substantial change in circumstances in certain cases, so long as the modifications promote the child’s best interests.
Under Section 610.5 of the IMDMA, a court may grant a modification in the following cases where there is no substantial change in circumstances:
- “The modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent;
- the modification constitutes a minor modification in the parenting plan or allocation judgment;
- the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved…; or
- the parties agree to the modification.”
Consult Law Offices of Jonathan Merel, P.C. for Legal Advice
Do you have questions about your legal rights when it comes to orders allocating parental responsibility or parenting time? If so, you should reach out to an experienced lawyer from Law Offices of Jonathan Merel, P.C. for legal representation. Our legal team has years of experience dealing with various issues concerning Illinois family law.