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Changes to Illinois Custody Law: Part 2 – Allocation of Parenting Time & Relocation

Allocation of Parenting Time

The 2016 changes to the Illinois Marriage and Dissolution of Marriage Act (the “Act”) appear to be the Illinois legislature’s acknowledgment that, in most households, both parents work, and children are becoming busier with school and extracurricular activities. This changing demographic requires each parent to accept more responsibility when it comes to their children. The Act now presumes that all parents are entitled to parenting time. When determining parenting time, formerly known as visitation, a judge will consider, among other elements, the level of involvement of each parent during the two (2) years immediately before a petition for allocation of parental responsibilities was filed. 750 ILCS 5/602.7(b)(3).

Along with the presumption that every parent is entitled to parenting time comes consequences for this presumption. Now, parenting time is not only a right, it is also a responsibility. A significant change to this section of the Act is the category described as “abuse of parenting time.” If a parent fails to exercise the parenting time allocated to him or her, the court has authority to use its contempt powers. This new addition to the Act will likely cause more litigation about parents who do not show up for their parenting time, or for parents who refuse to make a child available for the other parent’s parenting time.

Also, the Act now includes a section for the parent who has not been allocated any parental responsibilities. There is a presumption that a parent has a right to parenting time, unless it would “seriously endanger the child’s mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/602.8(a). The Act redefines a “restriction” on parenting time as “any limitation or condition placed on parenting time including supervision.” (Emphasis added) 750 ILCS 5/600(i). The important addition is “or condition.” Now, if there is any argument over parenting time and a parent wants to impose a condition on another parent’s parenting time, that parent must show endangerment. This is yet another change to the Act that will likely lead to more litigation.

Relocation

The Act was significantly revised to provide more controls and limitations on “relocation.” See 750 ILCS 5/600(g). The term “relocation” or “removal” means one parent’s moving a child’s residence away from his or her current residence and away from the other parent. Before the revisions to the Act, the parent requesting the removal could move the child anywhere in the State of Illinois without a court order; but a parent wanting to move with the child across state lines could not do so without a court order. For example, a parent could move his or her child from Chicago to Champaign, 140 miles downstate, without seeking the court’s permission, but would have to seek court permission to move the child 24 miles away to Indiana.

Fortunately, the Illinois legislature recognized that the old rule was not fair. Now the Act provides that a parent can move up to 25 miles across state lines or 50 miles within the State of Illinois without a court order. However, if a child and the parent seeking the removal live in the counties of Cook, DuPage, Kane, McHenry or Will, then the parent and child can only move up to 25 miles from the child’s current residence without a court order. 750 ILCS 5/609.2(h). Back to the example previously used, the parent wanting to move twenty-four (24) miles to Indiana with the child would now be able to do so without a court order; but the parent wanting to move to Champaign would not be able to do so without a court order. However, if the child moved with a parent to Indiana, the Illinois would continue to be the child’s home state.

It is important to remember that every case is different with varying circumstances and facts. Because of the potential for complicated and emotional issues for minor children of divorcing parents, it is best to choose an experienced attorney to advocate for yours and your children’s interests. With assistance from an experienced attorney, the parties can sometimes reach an agreement on a proposed parenting plan which in turn can avoid inconsistent and unpredictable allocation of parental responsibilities and parenting time. At Conniff Law Offices, our attorneys are experienced in family law with years of combined experience in divorce and allocation of parental responsibilities and parenting time. Contact one of our attorneys today to see if we can help you determine what choices will be best for you and your family.

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James T. Keleher named Partner at Conniff Law Offices

Conniff Law Offices is proud to announce that James T. Keleher has become the firm’s newest partner. After working for ten years at Conniff Law Offices, this latest accomplishment for Mr. Keleher is a reflection of his continued hard work and dedication. In recent years, Mr. Keleher has made a name for himself both as a distinguished attorney among his peers in the legal profession and as a reliable and capable legal representative among his clients. Now a partner at Conniff Law Offices, Mr. Keleher brings to the firm a specialized experience in complex divorce litigation.

As a student at The John Marshall Law School in Chicago, Mr. Keleher knew early on that he wanted to focus his legal profession exclusively on family law. His early awareness of his interest in family law has allowed him to accumulate a great deal of knowledge and experience in areas related to divorce, such as child custody, mediation, arbitration, and negotiation. This knowledge gives him a unique set of skills that makes him a highly capable attorney for clients who are pursuing their divorce either through litigated or alternative means. While at The John Marshall Law School, Mr. Keleher’s skills and ambition were recognized early on. He was named to the Dean’s List, received the CALI Award for scholastic excellence, and was nominated as a Who’s Who Among Students In American Universities and Colleges.

Since joining Conniff Law Offices as a Law Clerk in May 2005, Mr. Keleher has proven himself to be a committed and effective member of the firm’s team. After graduating from John Marshall Law School he was made an Associate at the firm before most recently being named a Partner. As a practicing attorney, Mr. Keleher has made a name for himself both in and out of the courtroom. In litigated cases he has been particularly successful in the area of child custody and he has had two child custody rulings affirmed on appeal. His clients have also recognized the value and professionalism of his service and he was awarded the Avvo 2015 Clients’ Choice Award as a result of their high satisfaction.

Mr. Keleher is also a member of the Chicago Bar Association and the West Suburban Bar Association. Furthermore, he has supported a number of charitable organizations, including Opportunity Knocks, the Kathleen Marian Garrigan Leadership Scholarship, and the Joshua Davis Scholarship Fund.

Mr. Keleher specializes in complex divorce litigation and brings his experience and knowledge of this important area of family law to Conniff Law Offices. As a firm that has already built up a considerable reputation in the family law community–especially in the areas of collaborative and mediated divorce–Mr. Keleher’s unique expertise makes Conniff Law Offices even more diverse and well-rounded in the services we offer our clients. For anyone who is considering a divorce, the team at Conniff Law Offices has the breadth and depth of knowledge and experience needed to help ensure clients’ needs and expectations are met throughout the divorce process.

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Changes to Illinois Custody Law: Allocation of Parenting Responsibilities & A Parenting Plan, Part 1

The Illinois legislature’s recent changes to the Illinois Marriage and Dissolution of Marriage Act (“the Act”) is an attempt to adapt to the ever-evolving parenting roles in today’s society.  While there have been many revisions to the Act as of January 1, 2016, arguably the most drastic changes relate to child custody, visitation, and relocation.  It is fair to say that the revisions to the Act reflect an intention to ease the negative effect that divorce has on children.

The most notable change is the elimination of the terms “custody” and “visitation.”  Instead, a judge must make a determination of the “allocation of parental responsibilities and parenting time.”   A judge now must review a “proposed parenting plan” submitted by the parents.  This parenting plan will include proposed parental responsibilities and a parenting time schedule.  However, the change in terminology does not change the basic nature of what judges must do, which is to determine what is in the best interests of the child.

Allocation of Parental Responsibilities

“Parental decision-making responsibilities,” formerly known as “custody,” include four (4) categories of responsibility: health, education, extracurricular activities, and religion.  750 ILCS 5/602.5(b).  These four categories are known as “significant decision-making responsibilities.”

Extracurricular activities is a recent addition to the list of parental responsibilities, formerly known as custody.  For example, do I have to enroll the children in these activities? Can the other parent enroll the children in activities during my parenting time?  Do I also have to take the children to the practice or lesson?  Can my new spouse or significant other attend these activities?  The addition of extracurricular activities to the statute reflects ongoing battles between parents over these issues.

Religion was previously considered an element of “custody.” The new Act, however, adds the requirement that there must be some evidence of an established religious tradition during the marriage before a court will make a decision about the child’s future religious upbringing, or a parent’s responsibility in continuing that tradition.  This is an important change because it tells the court to keep a “hands off” approach unless there was an express or implied agreement between the parents regarding the child’s religion before their divorce.

Determining a Child’s Best Interests

There are also new factors to consider when a judge determines the child’s best interests.  These new factors are: the ability of the parents to cooperate to make new decisions, level of conflict between parties to share decision-making, the distances between the parties’ residences, and the cost and difficulty of travel.  These are important considerations for a judge when determining parental responsibilities.

Caretaking Functions

Another significant change to the Act is the addition of the term “caretaking functions.”  Some of these caretaking functions include:  giving your child a bath, making sure your child goes to school and has good hygiene, providing moral and ethical guidance, and more.  750 ILCS 5/600(c).  The newly added caretaking functions could cause more litigation.  For example, will a parent be held liable if he or she omits or fails to supervise one or more of the elements described under “caretaking functions”?  A parent could be subject to criticism in a court proceeding and subject to potential liability if another parent were to use failure to perform a caretaking function as evidence of deficient parenting skills.

Understanding More about the new Act

Contact the experienced and caring family law attorneys at Conniff Law Offices to discuss how you can craft a parenting plan that meets your family’s needs and the requirements of the new Act.

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How to Prepare for a Postnuptial Agreement

Getting married is more than just an emotional commitment. In the eyes of the law, it is a financial commitment as well. A postnuptial agreement can provide peace of mind for those who want to retain control over their assets no matter what the future may bring. While you have probably heard of prenuptial agreements, you may be unfamiliar with what a postnuptial agreement is or what it does. This important legal document can prove highly useful, but you should understand how it works in order to prepare one that has the best chance of being legally enforceable.

What is a postnuptial agreement?

A postnuptial agreement is very similar to a prenuptial agreement and both are considered legally binding contracts in Illinois. Like a prenuptial agreement, a postnuptial agreement details how various issues are to be dealt with should a couple divorce, including such key issues as property division, spousal maintenance, and so on. The one key difference, however, is that a postnuptial agreement is prepared and signed after the couple marries.

Why get one?

There are many practical reasons for getting a postnuptial agreement. For example, if you have children from a previous relationship you may want to sign a postnuptial agreement to ensure that your children receive a share of your assets should your current marriage come to an end. In some cases, a postnuptial agreement is used to try to save a marriage. One spouse, for example, may be more willing to work on his or her marriage if his or her assets are protected in a postnuptial agreement. For many people, however, a postnuptial agreement simply gives them greater control over their lives and greater peace of mind for the future.

Preparing for a postnuptial agreement

While a postnuptial agreement is a legally binding contract that does not mean that all postnuptial agreements are therefore legally enforceable. As with other types of contracts, a postnuptial agreement can be challenged in court, especially if the terms of the contract are not in the public interest. Additionally, postnuptial agreements must meet various legal and technical requirements, which is why both spouses should have a family law attorney advise them on any postnuptial agreement they are preparing to sign. An attorney can advise you on a postnuptial agreement in many ways, including making sure that such an agreement is in your best interests and by ensuring that it is more likely to hold up in court.

We have extensive experience advising clients on postnuptial agreements. If you are looking to prepare a postnuptial agreement or if you just want us to give you advice on an agreement that has already been drafted, we can help. Contact us today to learn how a postnuptial agreement may be in your family’s best interests.

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Child Support and Income Sharing

Illinois follows the Percentage of Income Model for calculating child support. The current law (750 ILCS 5/505) sets child support by a percentage of the net income of the party paying support (generally the non-custodial parent) based on the number of children:

Number of Children Percent of Supporting Party’s Net Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

 

While the above formula is simple to apply, it often has inequitable financial results. For example, the parent receiving support may have a higher income than the parent paying support. Or, consider two parents with substantially equal parenting time and substantially equal incomes – the current statute provides no specific mechanism to take these factors into account.

However, a change is coming….Income Sharing is on its way!

The Income Shares Model for child support uses the incomes of both parents to determine an appropriate level of child support.  The Income Shares Model is presently used in thirty-eight (38) states. Legislation, HB3982, which would establish the Income Shares Model in Illinois, is currently before the House Rules Committee.

At the core of the Income Shares Model is a table of parents’ income levels and the costs to meet the needs of their child (ren). The Department of Healthcare and Family Services of Illinois will create a table which “reflects the percentage of combined net income that parents living in the same household in [Illinois] ordinarily spend on their children.” HB3982. The premise is that by using such a table, child support is then based on the actual expenditures for children by families at the same level of combined-income.

Further, the Income Shares Model provides specific guidance to calculate child support when the parents have substantially equal parenting time, something which is missing entirely from the current Percentage of Income Model.  This calculation comes into effect “[i]f each parent exercises 146 or more overnights per year with the child” which is the equivalent of each parent having at least 40% of the parenting time. Child support in a shared parenting situation is based on each parent’s percentage of time with the child, and then the child support owed by each parent is off-set to determine which parent has an obligation to pay child support to the other.

HB3982 also describes a more specific model for each parent to contribute to child care expenses. HB3982 states “the court, in its discretion, in addition to the basic child support obligation, may order either or both parents…to contribute to the reasonable child care expenses of the child.” HB3982 then further defines child care expenses as “actual annualized monthly child care expenses reasonable necessary to enable a parent…to be employed, attend education and training activities, or job search, and includes after-school care and all work-related child care expenses incurred while receiving education or training to improve employment opportunities” and “may include camps when school is not in session.” Unlike current law, HB3982 specifically addresses how to share child care expenses. “Child care expenses shall be prorated in proportion to each parent’s percentage share of combined parental net income, and added to the basic child support obligation.”

Further, HB3982 specifically states that “the court, in its discretion, may order either or both parents…to contribute to the reasonable school and extracurricular activity expenses” of a child and the court “may also order either or both parents to contribute to the reasonable health care needs of the child not covered by insurance, including, but not limited to, unreimbursed medical, dental, orthodontic, or vision expenses and any prescription medication for the child not covered under the child’s health or medical insurance.”

Although the Income Shares Model is not yet law in Illinois, it is on the way. The attorneys at Conniff Law Offices are monitoring the status of the new child support guidelines and will be working with our clients to prepare for the coming shift to the Income Shares Model. Contact the experienced family law attorneys at Conniff Law Offices to discuss how the Income Shares Model might impact you.

 

 

 

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