Flexibility in Parenting Time Schedules Not Only Benefits Your Children, It Keeps You Out of Court

September 8, 2016
By Angela Evans

The new changes to the Illinois Marriage and Dissolution of Marriage Act shift the focus on finality of final court decisions and stability to flexibility. Flexibility has always been necessary for a peaceful co-parenting relationship, regardless of what the law says. But new changes in Illinois family law should now encourage even the most rigid divorced parent to be more flexible.

I recently attended a seminar that had a section titled, “Stability of Custody Awards is No More: A Discussion of the Practical Differences Regarding the Changes to the 600 Series and Real Life Implications for Your Client and the Children.” This article summarizes some of the thoughts expressed by Attorney Stephanie A. Kasten from the Gitlin Law Firm, who presented on this topic, as well as some of my recent observations and reflections.

Pre-2016, there was a clear focus on the importance of finality and stability with regard to courts’ decisions on custody and visitation. Simply put, custody and visitation decisions were hard to modify. With recent changes to the Illinois Marriage and Dissolution of Marriage Act (effective January 2016), this is no longer the case. This is especially true if you are only trying to modify parenting time (similar to the term “visitation” used in the pre-2016 law) as opposed to parental decision making (similar to the term “custody” in the pre-2016 law). We can now modify parenting time at any time. The required burden of proof is now lower.

Why were these changes made to the law? One may assume that a lack of finality will only lead to more litigation and more attorney fees. This was often the rationale used by courts in pre-2016 cases to justify their reluctance to modify custody and visitation judgments.

Some practitioners believe these changes – including replacing the terms “custody” and “visitation” with “allocation of parental responsibilities” and “parenting time,” as well as doing away with the phrase “primary residential parent” – will help decrease litigation. The change in legal terms could help parents shift their focus away from terminology and focus instead on the larger picture – what is in the best interests of the children. The change in focus could help avoid litigation and encourage agreements. I do not believe that the change in the law will instantly conjure a focus on flexibility in parenting time by divorced parents, but I do think it should cause parents to realize that working together, especially on parenting time issues, is now necessary if they want to stay out of court. Moreover, flexibility in parenting time decisions may help parents avoid formal court proceedings to force them to be flexible, which is what the law now prefers.

Also, for parents to consider is that the new law related to allocation of parenting time now states that “It is presumed both parents are fit and the court shall not place any restrictions on parenting time […], unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” By removing the past titles of “custody” and “visitation” that implicitly placed a greater power on a certain parent, the new law seeks to equalize the parents, not only in title, but by seeking to also equalize each parent’s time with the children.
This is a clear signal to judges that they are charged with maximizing each parent’s parenting time unless it would seriously endanger the child, which is a very hard thing to prove in court. Now that the paradigm has shifted away from a traditional every other weekend, to both parents are fit and we need to maximize the kids’ time with both parents, a parent without a lot of time with the children should be emboldened to bring a modification of parenting time. Conversely, a parent with a disproportionately large amount of parenting time should aim to be flexible in allowing more time for the other parent when possible to dissuade a potential modification.
Also, the best way to prevent multiple trips to court is to put a great deal of time into your parenting plan when it is first entered. The parenting time provisions contained in the parenting plan are not the hard baseline it used to be, but there is no reason to rely on a future possible change. As a result, you should still try to contemplate upcoming disputes, anticipate future problems, address the future not just the present, and try reach a fair resolution in the current parenting plan.

Finally, while the change in parenting time allocation may be made more easily now, the new law does provide some protection against the overly litigious parent. Section 610.5(f) states “[a]ttorney’s fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious or constitutes harassment. If the court finds that a parent has repeatedly filed frivolous motions for modification, the court may bar the parent from filing a motion for modification for a period of time.” So, my takeaway is if you have a good faith belief that you cannot reach an agreement on parenting time and a change would truly be in your children’s best interest, go for it. But, like with anything else, pick your battles because there could be serious consequences if the court thinks you are bringing actions that are not well purposed.