CHICAGOLAWBULLETIN.COM MONDAY, FEBRUARY 26, 2018 ® Volume 164, No. 39 Serving Chicago’s legal community for 163 years Is a presumption of equal parenting time in a child’s best interest? From the enactment of the enting time, the two components Further, the enactment of statutory guidelines for of what we formerly referred to House Bill 4113 would allow for maintenance calculations as “custody.” These include the a level of predictability for in 2015, to the new “in- ability of each party to facilitate divorcing couples faced with the come shares” child support calcu- the relationship between the child uncertainties of life after dissolu- lations passed in 2017, the Illinois and the other parent and the abil- JACQUELINE tion of their marriage. With a legislature has attempted to ity of the parties to cooperate N. STEPHENS presumption of shared parent- streamline the divorce process by with one another. BREISCH ing, except in cases with a level reducing financial support calcu- However, when analyzing the of serious endangerment or lations to a series of various totality of these factors, the court abuse, parties can streamline the mathematical formulas. These does so through the lens of deter- process of determining a parent- changes in Illinois family law are mining the best interests of the Jacqueline Stephens Breisch is an ing schedule. They argue that intended to reduce litigation and child and has significant discre- associate at Schiller DuCanto & Fleck less litigation is in the best inter- create consistency in the financial tion in makings its findings and LLP. A skilled negotiator, Ms. Breisch est of the children and the par- uses her considerable litigation awards of maintenance and child how it weighs each enumerated ties, both from a financial experience when settlement is not in her support for divorcing couples. factor. perspective as well as reducing clients’ best interests. She works with House Bill 4113, referred to the House Bill 4113’s proposed revi- her clients to develop strategies and the emotional toll that litigation Rules Committee in October, sions to current law appear subtle solutions that will benefit them long causes. seeks to treat parenting time in a on the surface. Shared parenting after their divorce is finalized. She can Those in opposition of the bill similar fashion. The bill, in part, time has become more common be reached at jbreisch@sdflaw.com. raise concerns over taking away would create an equal parenting in recent years and a presumed judicial discretion in such an im- time presumption in all dissolu- 50/50 schedule could be viewed ferent parenting time allocation is portant area of the law which tion of marriage and parentage as the law catching up with the in the best interests of the child, cannot necessarily be reduced to cases. In short, any divorcing cou- reality of modern day parenting. the court is required to order an a “one size fits all” approach. ple would equally split parenting However, there are two central is- equal parenting time schedule ab- A 50/50 presumption shifts the time except if otherwise agreed, sues which have the Illinois State sent clear and convincing evi- focus from what’s best for the unless the court finds by clear Bar Association, The Chicago Bar dence of endangerment to the child to how we can treat the par- and convincing evidence that a Association and various other child. ents equally. Further, a presumed 50/50 parenting schedule would county bars and organizations op- Additionally, the standard pre- 50/50 schedule could be problem- seriously endanger a child’s well- posing the bill. viously considered in restricting a atic in cases where the parties being. First, the court must presume parties’ parenting time was a don’t live in close proximity and The bill’s enactment would rep- that 50/50 parenting time is in “preponderance of the evidence” the court is tasked with coming resent a dramatic shift in current the best interest of the child. In standard. House Bill 4113 propos- up with a schedule for children Illinois parenting laws. order to deviate from 50/50, the es heightening that standard to who may be traveling far dis- Since the eradication of the court would have to find that a re- one of “clear and convincing evi- tances on a regular basis for “tender years” doctrine, where it striction on parenting time is ap- dence.” school and activities. was presumed that young chil- propriate. Thus, the court would be pre- Opponents of the bill argue dren should spend the majority of Presently, with no presump- cluded from restricting parenting that streamlining to this degree their time with their mother, Illi- tions in place relative to parent- time and ordering a schedule should not be done at the cost nois courts have been directed to ing time, a court can tailor a other than 50/50, even if it is of determining a child’s best in- make findings and order parent- schedule other than 50/50 which more likely than not that a level of terests. ing time schedules which are in takes into account all relevant fac- serious endangerment exists. Not Several states have explored the best interests of the child. tors without necessarily finding only would the court be held to the concept of a presumed As gender roles have shifted that a parenting time restriction the presumption of equal parent- equal parenting schedule, with and evolved, judicial discretion is appropriate. ing time, but in order to deviate many of those initiatives dying and inconsistency applying this Under the proposed bill, the and restrict either party’s parent- before reaching full momentum. “best interests” standard often court is not held to the standard ing time, the court would be held House Bill 4113 is still in its resulted in so called “custody bat- of a determination of the child’s to this higher legal standard of relative infancy, but saw a near tles” with parents fighting for best interests, but instead that a substantially more likely than not. 2-to-1 ratio of proponents to oppo- each waking hour with their chil- shared parenting schedule would Those who support the bill nents showing support at a dren. not seriously endanger the child’s point to its merits of equality and recent hearing before the This “best interests” standard well-being. The legislature would inclusion for both parents. This House Restorative Justice Com- has long been codified in the effectively define the best inter- would shift the burden off of a fit mittee. statute, with a specific series of ests of a child as being with each parent from having to prove why Only time will tell if the bill will factors a court must consider parent for half of the time. Thus, they should have shared parent- continue to build momentum, when allocating parental decision whether or not a court would ing to the other party to prove causing another shake up in making responsibilities and par- have otherwise found that a dif- why they should not. Illinois family law. Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.