We recently published an article addressing the proposed legislation contained in House Bill 4113. HB 4113 would impose a starting presumption of 50/50 parenting time when it comes to child custody. “Child custody”, of course, is no longer a relevant term in the state of Illinois. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) has eliminated the notion of “child custody” and replaced it with the term, parenting time. In a “custody” dispute, parenting time is now the issue.
HB 4113 has been championed by people concerned about fathers’ rights. Mothers have traditionally been awarded primary custody more often than fathers (in the past), and mothers tend to be awarded the majority of parenting time now. Although there is no presumption in the current law (or former law) favoring mothers, people argue that a presumption exists, nevertheless, as a result of cultural and traditional attitudes and biases.
This cultural tendency can be, and sometimes is, exploited by mothers who want to exclude fathers from their children’s lives. We see this often in paternity cases (in which the parents were never married), but we see it in divorce cases as well. Sometimes mothers are even willing to forgo child support just to exclude a father from involvement in their children’s lives. Sometimes fathers are willing to accept that tradeoff, but the law, generally, doesn’t allow this kind of tradeoff because, as a public policy, the law assumes that both parents should have maximal involvement in their children’s lives, including the support of the children.
While the law doesn’t allow one parent to exclude another parent (legally) from involvement in their children’s lives, people sometimes engage in a course of conduct that is designed to poison the other parent’s relationship with the children and to alienate the children from the other parent. The clinical term for such a course of conduct is “parental alienation”. “Parental alienation is the process, and the result, of psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members.”
Parental alienation, of course, is not behavior limited to mothers. Any parent might engage in parental alienation, and sometimes both parents try to poison the children’s relationships with the other parent.
The previous article that was written expressed an opinion about the impracticality of starting with a presumption of 50/50 parenting time. We have taken the article down, not primarily because of the controversial nature of the subject matter, but because our “job” is not to express opinions on legal issues. Our obligation as attorneys is to be zealous advocates for our clients’ interests, whatever they may be.
Still, the subject of the proposed legislation is important, and it’s important to understand the issues, as they affect real people, real parents and real children.
A recent article in the Illinois Bar Journal by Matthew Hector (May 2018), addresses what some of the critics are saying about the proposed legislation. Current Illinois law focuses on the “best interests of the children”. This has always been the focus of the law. Critics say that the new legislation would shift the focus to the parents.
These same critics say that the Bill is unnecessary because the current statute, “seeks to equitably allocate parenting time but protect the interests of children” already. They urge that “focusing on the specific circumstances of each family” makes the best interests of the children the priority; while focusing on the parents “puts the best interests of the child on the back burner.”
Interestingly, the Illinois Coalition Against Domestic Violence also opposes House Bill 4113. They urge that domestic violence is often difficult to detect. They fear that the new legislation will “enable abusers to exercise further control over their victims and use the court process to intimidate them” (using the presumption of 50/50 parenting time to maintain that control). They are concerned that “victims will be forced to live in the same areas and make child-related decisions with their abusers” if the presumption is 50/50 parenting time.
Other people stress that the IMDMA “already provides for shared parenting that encourages maximum parental involvement of both parents.” They don’t see the need for the presumption. They site to the opinions of licensed clinical psychologists who agree that shared parenting with two good parents is in every child’s best interest, but these same licensed clinical psychologists disagree that this requires equal parenting time in every instance.
Another aspect of shared parenting time that has to be considered is the new child support guidelines that were recently enacted. Child support is now based on a formula that includes the relative incomes of both parents and the amount of time each parent spends with the children. The determination of parenting time therefore, impacts child support. This may become a motivator for the parent with the greater income to seek more parenting time to reduce the child support obligation. Critics say that the 50/50 presumption would “unfairly put the parent with lower income at a severe financial disadvantage.”
These are all legitimate critiques of the new legislation, but they all ignore the driving motivation and purpose of the new legislation, which is to combat parental alienation. The presumption of equal parenting time is seen as a way of leveling the playing field and eliminating or reducing the behavior and the effects of parental alienation. Starting off with a presumption that parenting time should be 50/50 sends a clear message that there is no presumption in favor of either parent. It is a clear policy statement in favor of maximizing both parents’ involvement (not that such a policy statement isn’t evident (and expressed) already in current law).
In a subsequent blog post, we will get into the subject of parental alienation, what it is, and what can be done about it. For the time being, we wait on the State Legislature to ponder the wisdom of passing HB 4113. If you have any thoughts on the subject or experiences that might be informative, you should contact your local legislators and let them know how you think on the subject.