Ordinarily parents make decisions about their children together. But when parents divorce, the hostility between them sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even parents who have done a great job while married may find it useful to consult a child development expert for help in meeting these challenges.
Issues related to children can present challenges for your lawyer as well. While your lawyer's loyalty is to you, your lawyer also has an obligation as an officer of the court to keep the best interest of the children in mind, even if that interest is inconsistent with yours.
Legal and Physical Custody
Legal custody is the right to make important long-term decisions affecting your children's welfare. Long-term decisions made by the parent with legal custody may include the children's education, religion, and non-emergency medical care. Legal custody can be vested in one parent (sole custody) or shared by both parents (joint custody).
Physical custody (or possession) is the responsibility of having the children live with you. The parent with whom the children are residing at the time has the responsibility for making day-to-day decisions. Day-to-day decisions include what the children eat and wear, who they play with, and when they go to bed.
Usually the parent without physical custody has visitation rights or parenting time. The terminology is less important than how the arrangement works in practice. Joint custody, where the parents share the decision-making power, has become the rule, rather than the exception, in Illinois. A prerequisite to an award of joint custody is the ability of the parents to put aside their differences and an ability to cooperate in raising the children.
Visitation or Parenting Time
There is no one standard visitation arrangement. Some parents alternate weeks with the children and others alternate months; others divide the children's time unequally, but in a manner that meets the needs of each particular family. Parents who work out these arrangements themselves are usually more creative than courts are when the parents can't agree.
Custody Disputes
When the divorcing parties have children, many fears and uncertainties present themselves. Some of your most fundamental personal liberties – decisions on how you raise your children – are in the hands of a judge who knows nothing about you or your family. The best interests of the children are paramount in every divorce and if the parents are unable to agree on custody, visitation, and other important child-related issues, the court will make decisions that will then be imposed upon the parties.
At a recent conference, I heard a wise judge speak about the difficulty faced by judges who must make crucial parenting decisions when the parties do not agree. He believes that court is the last place families should be divided. The judge said that “The law is the lowest standard of acceptable conduct for members of our society. Why do we expect only the lowest standard of societal conduct for families”? Court is a place of last resort when families must be divided. In my experience, neither party is ever fully satisfied with the outcome of a divorce trial. There is no such thing as a “win-win” divorce in court.
Court Process in Contested Custody Cases
If the parents do not agree on major issues regarding the arrangements (custody, visitation) for the children after divorce, the case is “contested”. The vast majority of contested custody cases settle before (or during) trial. When the parties do not agree on custody, the court will require that they attempt to resolve their differences through mediation, custody evaluation, and/or the appointment of an attorney to represent the children.
Mediation
Mediation is when the parents meet with a neutral third party to try to reach an agreement. A mediator is a mental health professional or attorney who is an expert in communication. When parents can't agree on issues of custody and visitation, the court will require the parents to participate in mediation.
A mediator facilitates communication between the parties and helps them reach agreements. A mediator does not give legal advice, even if that mediator is a lawyer. A mediator does not listen to both sides and decide who is right or wrong. Often, compromise can be reached when the emotions are taken out of the discussion and the focus is redirected to the problem that must be solved. In my experience, at least 65% of contested custody matters will settle in the hands of a skilled mediator.
Custody Evaluation
Sometimes the court will order an investigation and recommendation by a mental health professional. The investigation may include interviews with the parents, the children, their teachers, their day care providers, neighbors, doctors, and anyone else who is significantly involved with the children. The investigation usually includes psychological testing performed on both parents. The investigator usually writes a report and makes recommendations to the judge, which can be helpful in reaching an agreement. If no agreement is reached, and the custody or visitation dispute must be decided by the court, the judge will probably read the report and be influenced by it.
Lawyer for the Children
The court may appoint a guardian ad litem, attorney for the child, or child’s representative to represent the children or look out for their best interests in a custody or visitation dispute. The roles of each professional vary but they are all charged with providing the court with information about the best interests of the children.
Trial
If the parents are still not able to settle custody and visitation issues after investigation, negotiation, and mediation, these issues are presented to the court for decision in a trial in which witnesses are called and arguments are presented. Then the matter is out of the parents' control as the judge decides what arrangement to impose on them.
Children as Witnesses
Parents often want to know if their children will be called as witnesses. Professionals advise against involving children in court proceedings because it is a very traumatic experience for them. This is equally true whether the dispute is over custody or something else.
Many people incorrectly assume that at a certain age children have absolute rights to pick the parent with whom they will live. In Illinois, that is not the case. The preference of the children is only one of a number of factors that the court will consider in deciding a contested custody case. Only in rare instances will the judge interview the children. If that interview occurs, it is held in the judge’s chambers (or office) with the attorneys present and a court reporter taking down everything that is said.
Child Support
In Illinois, child support is set by statute, according to the number of children:
1 = 20%
2 = 28%
3 = 32%
4 = 40%
5+ = 50%
Child support is calculated from the net income of the payor spouse. It is non-deductible for income tax purposes. Child support is not designed to pay for only food, clothing, and entertainment. It also goes toward housing, transportation, medical expenses, and all other usual and customary needs of the children. Child support is normally contributed by the nonresidential parent.
Unallocated support is another form of child support that also includes a component of alimony. The entire amount is deductible for income taxes and includible in the income of the payee spouse. Unallocated support is appropriate when one party earns much greater income than the other.
Effect on Children
In the heat of divorce proceedings, it's easy to lose sight of the fact that the parents are getting divorced and not the children. The behavior of parents before and after divorce has a great influence on the emotional adjustment of their children throughout their lives.
It is inappropriate to raise custody and visitation issues to gain an advantage in negotiations over financial issues. Such tactics do more harm to the children and the parenting relationship than you can imagine. Such behavior only heightens the emotional tension and makes settlement more difficult.
Practical tips on Parental Conduct During and Following Divorce
- Put your children's welfare first. Never use your children as a weapon against your spouse.
- Be sure your children have ample time with the other parent. They need it.
- Don't introduce your children to your new romantic partner until the children have adjusted to your separation and your new relationship is stable.
- Don't bring your children to court or to your lawyer's office.
- Keep to the schedule. Give the other parent and the children as much notice as possible when you will not be able to keep to the schedule. Be considerate.
- Be flexible. You may both need to adjust the schedule from time to time.
- Giving of yourself is more important than giving material things. Your children need your consistent love and attention.
- Do not use your children as spies to report to you about the other parent.
- Do not use the children as couriers to deliver messages, money, or information.
- Try to agree on decisions about the children, especially matters of discipline, so that one parent is not undermining the other parent's efforts.
- Avoid arguments or confrontations while dropping off or picking up the children and at other times when children are present.
- Don't listen in on your children's phone calls with the other parent.
- Maintain your composure. Try to keep a sense of humor. Remember that your children's behavior is affected by your attitude and conduct.
- Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent.
- Don't criticize the other parent in front of your children. Your children need to respect both parents.
