April 2, 2014
By Michael D. Gerhardt, Esq., Member, National Parents Organization

I keep getting asked, “What is going on in Illinois?” My answer, “A lot.” But I am sure most people really mean to know what is going on with our Shared Parenting Bill - HB5425. National Parents Organization wrote about it here.

A quick recap, HB5425: (1) recognizes that the involvement of each parent for equal time and not less than 35% of residential parenting time per week is presumptively in the children's best; (2) presumes parents to be fit; (3) requires parents to come up with a parenting plan within 90 days; if not, then the judge has 60 additional days and should award equal time unless it is not in the child’s best interest, then a minimum of 35% parenting time should be awarded to each fit parent; and (4) requires clear and convincing evidence to impose any restriction on parenting time.

What to do? Email Representative Kelly Burke.  Ask her not to bow to the threats of the Illinois Bar Association and to implement the recommendations of the Illinois Family Law Study Committee regarding custody and visitation.

But let me backtrack a little. In 2008, Illinois formed the Illinois Family Law Study Committee to “study the changes in law and society since the Act was enacted, and recommend how the Act should be amended to improve and update it.” The selected committee members consisted of well-respected lawyers, judges, legislators, and experts. The Committee spent years researching social science, laws of other states, interviewing witnesses, and reviewing data. The Committee approved a recommendation for a minimum of 35% parenting time. The custody subcommittee voted 6 — 0 in favor of these recommendations. The full Illinois Family Law Study Committee voted in favor 11 — 6.

Based on the Illinois Family Law Study Committee recommendations, HB1452, a complete rewrite of Illinois’ divorce laws was introduced. Included in the Bill was that there would be 35% minimum parenting time. As you can imagine, from here, things got contentious and tricky. The State Bar could not let minimum parenting time go unchallenged. And challenged it went. The sponsoring representative, Kelly Burke, did what legislators are supposed to do — bring in the opposing parties to negotiate a solution. The problem was that the Illinois Family Law Study Committee was no longer in existence. But who are we to let something as minor as that interfere with what the Bar wanted. (Note that the people most affected by the proposed legislation were never asked to the table, although they asked to be at the table.)

Apparently, and unbeknownst to members of the Illinois Family Law Study Committee, the now disbanded Illinois Family Law Study Committee somehow magically transported itself in time (Einstein would be proud) and conceded to the Bar. It accepted and adopted through testimony, Amendment 1 — the evisceration of minimum parenting time as the Illinois Family Law Study Committee’s now official position. A shock to members of the Committee who were not consulted. Their long and hard work and recommendations were ignored and discarded by someone claiming to be “representing” the Illinois Family Law Study Committee. With that, Illinois volunteers took action and introduced HB5425 — basically returning minimum parenting time to proposed legislation.

Presently, both HB1452 and HB5425 have passed out of the House Judiciary Committee and are on the Calendar for a Second Reading.

We also heard the usual arguments about judicial discretion and “one size fits all.” In HB5425, judges still retain discretion as to whether a parent is fit. If both parents are fit, then the judge is to follow the social science and recommendations of the Illinois Family Law Study Committee. Additionally, it can easily be stated that there is presently no judicial discretion and we already practice “one size fits all.” Ask any parent, lawyer, or judge, what is the “standard visitation?” The answer will always be the same: “every other weekend and a few hours one day per week.” There are even a few jurisdictions that actually put these words in their local rules; thereby removing judicial discretion and creating a “one size fits all.” And there are even Appellate Court cases calling every other weekend as “usual and customary” visitation. So the judicial discretion and “one size fit all” argument is a false argument.

#Illinois, #Familylaw, #Sharedparenting, #KellyBurke, #IllinoisFamilyLawStudyCommittee

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