There
is no road map that allows us to provide hard guidance on how to manage
parenting during this difficult time. Families are in unfamiliar territory.
However, there are some things that hopefully will help you navigate
co-parenting.
Follow
existing court orders. Parents must
follow existing court orders. This is scary advice for clients who may feel
that the other parent is not practicing social distancing practices. Courts are
not generally hearing these cases at the moment. In Illinois most courts are
closed until mid-May with the exception of emergencies. Common sense would
indicate that if one parent has been exposed to COVID-19 then act responsibly
even though it may violate the parenting plan. If a child or other family is at
high risk medically that may impact how parenting time is exercised, don’t be
arbitrary and act responsibly. Your failure to act in good faith during this
time will be used against you in the future.
Modifications. If you do decide to modify the existing Parenting
Plan, I suggest you get this modification in writing. This can be done with
your attorney by drafting a stipulation amending the existing schedule and
signed by both parties.
Be Flexible. Many of us including attorneys are working remotely.
Some families are now faced with the challenge of working while home schooling
and dealing with children home all day every day. If possible support the other parent during
this time to allow you both the option of working and supporting the education
of your children.
Keep communication
neutral. Resist the desire to lash
out at your ex at this time. Stay focused on the kids and the logistics of what
needs to be done.
Prioritize the
Financial Needs of your child. If one
parent loses a job or becomes unable to work due to illness or temporary
closures this will require a rethinking of support and payment obligations.
Parental
contact. In some situations in person
contact may be limited. Use Skype, Zoom or Face Time to ensure regular contact
with the other parent. It is important for your family.
There was a period in my practice that guardianship seemed
like the only option for families of disabled adults. That is no longer the
automatic solution. In our office we have always emphasized that there is no
one size fits all. Guardianship does not solve most issues facing families with
young adults with disabilities.
Here are a few scenarios that have come up over the years in
my office.
Matthew is
18. He is diagnosed with bi-polar disorder and a learning disability. Matthew
only wants to play video games in the basement and refuses medication. The
parents have been told by the school that they should seek guardianship in
order to force Mathew to take medication.
Anna is a
young adult with Down Syndrome. She will be finishing her transition program at
the high school next month on the day before her 22nd birthday. The
parents have not pursued guardianship but rather worked with Anna in helping
her make some of her decisions. Recently, Anna was sick with the flu and had to
be hospitalized. The hospital wanted to make sure the parents had a legal right
to make decisions.
Frank is a
young man with autism. He is non-verbal and is in a group home. His parents are
very concerned about his care. They obtained guardianship of Frank when he
turned 18.
The planning process for a family member with a disability
should start well before the person’s 18th birthday. The educational
team which includes the parents should discuss skills needed and any barriers
or deficits that need remediation or support. Guardianship is not a must but an
option. This is not an all or nothing approach of independence. There are other
supports that exist to help.
****
Let’s talk about our hypothetical of Matthew. Matthew has
average intelligence. He is impulsive and has had 3 psychiatric
hospitalizations in the last year. His parents finally persuaded him to sign a
Power of Attorney for Health Care and a Mental Health Declaration so that they
can help him in decision making and have information about his treatment. The
school is still insisting on guardianship. The parents are not sure that
guardianship is the right solution.
FAQ: What options exist other than guardianship?
A Power of Attorney for Health Care
Mental Health Declaration
Delegation of Rights (for special education
decision making)
FAQ: Do the parents have a right to make Matthew take
medication if they become his guardians?
No. Guardianship does not give you the power to
forcibly medicate a person with a mental illness.
In Matthew’s case the law is clear that a
guardian of the person cannot override his decision not to take medication in a
non-emergency situation without a petition to the court. 2-107(a) reads in
pertinent part as follows:
A
Guardian of the Person cannot override the decision of the patient/ward in a
non-emergency situation without a petition to the court. An adult recipient of
services or the recipient’s guardian, if the recipient is under guardianship
and the recipient’s substitute decision maker, if any, must be informed of the
recipient’s right to refuse medication or electroconvulsive therapy. The ward
has a right to refuse medication in a non-emergency situation. However, a
guardian may be authorized to consent to the administration of psychotropic
medication or electroconvulsive therapy to an objecting recipient only under
the standards and procedures of subsection(a-5). This refers to the seven
requirements that must be met in order to override the ward’s refusal. The
acting physician can also petition the court for the involuntary treatment of
the ward if both the ward and the guardian refuse treatment and must prove the
same seven things that the guardian would have to prove to overcome the lack of
consent.
The following must be proven at a hearing with clear and
convincing evidence.
That the recipient has a serious mental health
or developmental disability.
That because of said mental illness or
developmental disability, the recipient exhibits any one of the following:
Deterioration of his or her ability to function,
as compared to the recipient’s ability to function prior to the current onset
of symptoms of the mental illness or disability for which treatment is
presently sought.
Suffering, or
Threatening behavior.
That the illness or disability has existed for a
period marked by the continuing presence of the symptoms set forth in item (b))
of this subdivision (4) or the repeated episodic occurrence of these symptoms.
That the benefits of the treatment outweigh the
harm.
That the recipient lacks the capacity to make a
reasoned decision about the treatment.
That other less restrictive services have been
explored and found inappropriate.
If the petition seeks authorization for testing
and other procedures, that such testing and procedures are essential for the
safe and effective administration of the treatment.
After
the petition has been filed, the court has seven days to hold a hearing and the
parties are entitled to a continuance of seven days by right. If the seven
statutory factors are proven at a hearing the ward’s lack of consent is
over-ridden. If they are not proven the ward’s decision is affirmed.
FAQ: Does
Guardianship give Matthew’s parents the right to make him live in a group home?
No. Matthew must consent.
This is not intended to be an exhaustive
discussion of all the complexities of the Mental Health Confidentiality Act or
the Probate Act. The real intent of this discussion is that guardianship over
an adult with mental illness does not give you a magic wand that allows you to
force treatment or admission to a facility.
****
The options for
Anna. Not unlike the scenario in Matthew’s case, Anna’s parents had always
assumed that they would become Anna’s guardians when she turned 18. However, as
Anna moved through school and they met other parents it became clear that there
may be less restrictive options for helping Anna navigate the world more
independently.
Anna looked to her
parents for help in managing her money. She had a job after school at a local
pet store. She had very clear ideas about her clothes, music and food choices.
Anna wanted to get an apartment at some time like her older sister. Anna’s
parents wanted a place at the table to support her in decisions. Anna and her
parents decided that at least for now, they would agree that she would execute
a Power of Attorney forHealth
Care that would be used if serious
medical issues arose. Anna’s mother always accompanied her to any doctor
appointments. This was important to both of them. They found a doctor who was
very good at explaining things to Anna and asking for her input. For now, they
would not pursue guardianship.
It centralizes communication and helps with organization. Even for divorcing or divorced parents it has been my experience that the apps provide a less emotional vehicle for communication. Using an app can also limit the he said, she said phenomenon.
FAQ:
What can an app do to help with scheduling?
Most
apps provide an ability to use a shared calendar and allow you to provide
notice to the other parent in the event of a schedule change. I represent many
families with children who have special needs. Often the scheduling
complexities of outside therapies, doctor’s visits are daunting to intact
families. In divorced families, managing the scheduling is even more daunting.
An app that gives a calendar and notifications regarding changes is essential
and reduces the stress of constant communication.
FAQ:
My ex and I share expenses for our two children. Are there apps that track
expenses?
Yes.
Not all apps have an expense tracker, but most do. The list of common apps and
their features is listed below.
FAQ:
My wife has been very verbally abusive on the phone when we discuss anything to
do with our kids. Can an app help eliminate the tension or the constant
fighting via phone or text?
The answer
is yes. The apps aren’t perfect and for someone who is constantly angry they
may not resolve that completely. However, I have been involved in high conflict
divorces where the court may order that all communication ( with the
exception of an emergency) be conducted through an app. This does reduce much
of the free-floating anger and allows for more detached communication.
Apps for Coparenting
Our Family
Wizard
A divorce
couple created the Our Family Wizard platform to help keep communication
between co-parents as harmonious as possible. Each parent has their own account,
and can then add as many third party, child accounts and professional accounts
as the require at no extra cost. Attorneys and mediators are examples of third-
party accounts. There is an option extra called a ToneMeter. This is designed
to pick up on negative tones in a message and giving you an alternative that’s
less likely to start an argument. It also tracks and logs communications,
providing access to accurate records that may be used in court proceedings.
Costs:
$99.00 per year with a thirty- day money back guarantee. Each parent must
subscribe. The ToneMeter is available for an additional $10.00 charge annually.
Talking
Parents
Talking
Parents is an app that is free for the basic subscription. It has fewer options
even with the upgrades at an additionally monthly cost. This app is a good
option for parents who want to an ability to communicate with a secure system
that allows the parties to keep a record of communications.
Cozi
Cozi is a
free co-parenting app that allows you to set up shared calendars, create to
do-lists, share photos and other information. The basic version is free. It can
be shared with anyone who needs to access the shared calendar and other
information. Upgrades are available.
Coparently
Shared Calendar
Tracks Expenses
Mobile Access
Cost is
$99.00 per year per parent.
Most
of the apps offer a free-trial period. Determine which one works for your
situation. Discuss the use of the app with the other parent. The courts in high
conflict situations may require parties to utilize apps for communications and
this is often incorporated into a court order.
If you are contemplating divorce or
struggling to co-parent with the other parent or want advice on how to proceed
legally to achieve the best outcomes for you, your children and family. Call me
to discuss how our firm can assist you in this journey. (312)-640-0500 or via
e-mail at mmoran@grundlaw.com.
The holidays can be fraught with tension for many families who are divorced or who are in transition. Over the years of my practice as a family law attorney, I have developed a list of those things that can help during this complicated time of year.
1. Plan ahead. That may sound simple but very often clients find themselves in “emergencies” that their ex-spouse has generated. Sit down with a calendar and plan the days that loom ahead. Ask yourself if you and your co-parent are in agreement on where and when the children will be for each designated holiday. These details should be in a well-drafted Parenting Plan. However, parents may disagree on the language or fairness of the allocation of parenting time. This needs to be addressed before the holiday season and not on the day before a major event.
Communicate in writing with the other parent. Outline the itinerary if applicable for the upcoming holidays. Confirm in writing that there is an agreement regarding the pick -up times, dates, and any other details that are necessary. Document your efforts to resolve any dispute or your efforts at co-parenting.
Let the children or teenagers know of the plans. This discussion and how it is presented varies by age and developmental level. They should not be put in the middle of any discussion where there is a dispute. However, letting them know of the schedule can help ease any anxiety about how the holidays will be celebrated with each parent.
Stay positive and be flexible.
2. Determine how you will communicate with your children when they aren’t with you. Don’t infringe on the other parent’s time. Let them know you care, but keep it short and positive.
3. If you are struggling with the holidays as a result of the divorce or simply because they are hard, don’t share that with the children. Things will get better.
4. If there is an emergency or your ex-spouse is being difficult, keep in mind that judges don’t respond favorably to emergencies that are a result of procrastinating or playing gotcha with the other parent. If you anticipate a problem, plan ahead and let your attorney know of your concerns well in advance of the upcoming holiday or event.
5. Prepare your children or teens for the transitions and changes. Do the right thing and take the high road.
6. Do your best to enjoy the holiday events. Create new rituals for yourself and with your children.
A guardian ad litem is an attorney who
is appointed to investigate the best interests of the child. In any proceeding
involving the allocation of parental responsibilities, parentage, support,
relocation, property interest, abuse or general welfare of a minor or dependent
child, the court may appoint an attorney in one of several roles. The guardian
ad litem is one option for the court. A guardian ad litem is not appointed in
every case. The court will often appoint them if there is no agreement between
the parties in child related issues.
The guardian ad litem shall testify or submit a written report to the
court regarding his or her recommendations in accordance with the best
interests of the child. The report shall be made available to all parties. The guardian
ad litem may be called as a witness for purposes of cross-examination regarding
the guardian ad litem’s report or recommendations. The guardian ad litem shall
investigate the facts of the case and interview the child and the parties.
Typically, the guardian ad litem will
interview both parents and the children. They will visit each parent’s home and
may as part of their investigation speak to teachers, the child’s pediatrician,
relatives, and therapists. Each case is unique. However, the guardian ad litem
should be familiar with all the issues and needs impacting the children in the
case in order to prepare their report for the court.
What are the factors a court and a
guardian ad litem consider in determining the best interests of the child?
Under 750 ILCS 5/602.7, when
determining the child’s best interests for purposes of allocating parenting
time, the court shall consider all relevant factors, including without
limitation, the following:
The wishes of each parent seeking
parenting time;
The wishes of the child, taking into
account the child’s maturity and ability to express reasoned and independent
preferences as to parenting time;
The amount of time each parent spent
performing caretaking functions with respect to the child in the 24 months preceding
the filing of any petition for allocation of parental responsibilities or, if
the child is under 2 years of age, since the child’s birth;
Any prior agreement or course of
conduct between the parents relating to the caregiving function with respect to
the child;
The interaction and interrelationship
of the child with his or her parents and siblings with another person who may
significantly affect the child’s best interest;
The child’s adjustment to his or her
home, school, and community;
The mental and physical health of all
individuals involved;
The child’s needs;
The distance between the parent’s
residences, the cost and difficulty of transporting the child, the parent’s
daily schedules, and the ability of the parents to cooperate in the arrangement;
Whether a
restriction on parenting time is appropriate;
The physical
violence or threat of physical violence by the child’s parent directed at the
child or other member of the child’s household;
The
willingness and ability of each parent to place the needs of the child ahead of
his or her own needs;
The
willingness and ability of each parent to facilitate and encourage a close and
continuing relationship between the other parent and the child;
The
occurrence of abuse against the child or other member of the child’s household;
Whether one
of the parents is a convicted sex offender or lives with a convicted sex
offender and, if so, the exact nature of the offense and what if any treatment
the offender has successfully participated in; the parties are entitled to a
hearing on the issues raised in this paragraph (15);
The terms of
a parent’s military family-care plan that a parent must complete before
deployment if a parent is a member of the United States Armed Forces who is
being deployed; and
Any other factor that the court
expressly finds to be relevant.
In my practice I make a point of
reviewing the above factors with my clients in a discussion of allocation of
parenting time and decision-making. If there is a dispute over these issues it
is important that the client is aware of the best interest factors. This review
is essential in preparing for mediation, settlement, or litigation if there is
no agreement.
How does the court choose a guardian ad litem?
Each county has a list of attorneys who
can function in this role. They have taken training in child development,
family law and child related issues.
Who pays for the guardian ad litem?
The parents are responsible for the
fees of the guardian ad litem. The guardian is required to submit an invoice
and statement of their fees to the court. The Judge can order that the parties
share the costs equally or apportion them between the parties in a fair and
equitable manner.
Note: The GAL or guardian ad litem is
not the only attorney that can be appointed in a disputed matter. The court can,
as appropriate under the facts of the case, appoint an attorney as a child
representative or attorney for the child. These roles differ from that of the
guardian ad litem.
There is
no one size fits all parenting plan. It should be based upon the best interests
of your children and what works for your family. I have created a checklist
that is a good starting point for parents who are contemplating divorce or
separation to address the numerous issues that need to be addressed in a
parenting plan.
There is no one size fits all parenting plan. It should be based upon the best interests of your children and what works for your family. I have created a checklist that is a good starting point for parents who are contemplating divorce or separation to address the numerous issues that need to be addressed in a parenting plan.
Parenting Schedule (Research
supports the concept that frequent continued contact with both parents is best
for children in most situations). *
There is no mathematical formula that is
automatically applied.
The question is how your child will divide their
time between both homes.
Your child’s unique needs should be the center
of any discussion.
50/50 isn’t always best for the children
Transportation. Who, Where and When? Pick up and
drop off times should be specified.
School District considerations
How will we juggle extracurricular activities,
after school, or other events?
Will one parent return to work?
Do any of the children have special needs?
*Tip: Print a paper calendar and outline the
proposed schedule. I recommend doing this for an entire calendar year. (should
include holidays, vacations, school breaks)
Holidays/Special Dates* What holidays are celebrated by your family?
Birthdays
Parents Birthdays
Special Events (evolving)
Father’s Day
Mother’s Day
Shared holidays
Alternated holidays
*Tip: Check dates on the calendars several years in
advance. Map them out on a calendar so you get a visual of what this will look
like. Check school calendars as well.
Travel and
Vacations: How much
advance notice does each parent want or need to plan for vacations/travel?
How much vacation time will each parent have
each year?
Will the children be required to travel?
Who will pay for the cost of travel?
Schedule Changes:
Life Happens. Flexibility is important.
Emergency vs. non-emergency situations.
Children need predictability. Schedule changes
should be minimized.
Decision Making:
Shared/ Sole or Split
Education
Medical
Extracurricular
Communication:
Between parents (computer-based communication systems are recommended).
With the parents
Frequency
Text/Cell phone/Skype
Expenses:
Draft a budget for anticipated expenses. (e.g. orthodontia, sports,
tutoring)
Mediation is increasingly used by divorcing couples as an
alternative to litigation as a means of both reducing conflict and cost.
The mediator in divorce is a neutral professional (often an
attorney trained in mediation) who assists the parties in creating an out of
court settlement of all of the issues in the divorce. The mediator helps the
parties discuss financial concerns, parenting time, allocation of decision
making. The parties in the course of mediation exchange relevant information on
financial matters, property, debt, child related matters and any other issues
that need to be resolved in the marital settlement agreement. Parties are
encouraged to consult an attorney for guidance to understand the legal
implications of their choices and the available options.
Options
The attorney’s role in the mediation process depends on the
situation. At the very least, it is important to educate the client regarding
their options and how the existing law applies to their case. This assists the
clients in making informed decisions.
Assembling Needed Information
Divorce can be overwhelming. One of the roles an attorney
plays in facilitating mediation is to help the client assemble the necessary
documentation that is required in a divorce. In Illinois, both parties must
complete a Financial Affidavit that discloses their current financial data.
Parties need to provide pay stubs, credit card statements, tax returns and
other documents as part of this process. This is an opportunity to educate the
client on financial issues. Some clients may be very savvy while others may be
unaware of their choices and the decisions that need to be made. An attorney
who is present at the mediation can help guide the steps necessary to help you
reach a fair and equitable settlement. The attorney can be the client’s voice
in articulating needs and desired outcomes.
Preparing for Attorney Assisted Mediation: A Checklist
Parenting
Parenting Plan – be prepared to discuss how each
of you will share time with the children.
Decision making- will you share decision making?
Sole decision making to one parent?
Are there any special factors that are unique to
your situation (child with special needs, parents work schedules)
Financial (should be individualized for every case)
Assets:
Income Tax
returns
Mortgage
Statements
Stock
Retirement
Accounts
Debts/Liabilities
Credit
Cards
Auto Loans
College
Expenses
Insurance
Premiums
Priorities:
Attorneys can help their clients identify those things that
are most important to them in negotiating a settlement that seems fair and
addresses their concerns. Helping a client set realistic attainable goals is
one of the functions of attorneys in attorney assisted mediation.
How can we help?
Contact our office for a free consultation regarding your
divorce and the role our attorneys can play in attorney assisted mediation.
There are no
“typical” fact patterns when it comes to divorce when a child or children have
special needs. From the beginning of the case, our office makes it a priority
to understand the unique needs of these families. This often means asking
certain essential questions that will guide our legal advice and strategy.
Questions
that help in developing a plan are as follows:
What are the
ages of the child or children?
Do one or
more of them have a diagnosis of a disability?
What is the
disability?
How does it
impact your family? The child?
Who is the
primary caregiver?
Has the child
been evaluated?
Does the
child have an IEP (Individual Education Plan)?
What
therapies outside of school are being provided?
Are there any
special financial needs? (e.g. equipment)
Are they
ongoing, recurring, non-recurring?
How does the
child handle transitions?
Is the
current marital residence specially outfitted for your child?
Does the
child’s disability prevent one parent from being employed?
Will child
support impact the child’s receipt of governmental benefits?
Is there a
special needs trust already established?
Documents
to provide our office:
(not exhaustive)
An evaluation of the child
School
records (typically the last two years)
A daily
schedule detailing the care required. A day/week in the life of your child
helps in developing a parenting plan and allocating decision making.
List of
expenses (including therapies, child-care, uncovered medical expenses) related
to the special need’s child
Income tax
returns (pay stubs and supporting documentation)
Divorce is
difficult under any circumstances. Our office works with complex families. There
are many more moving parts when a child with a disability is involved. There
are both short and long-term considerations to be addressed in the process. Our
goal is to work with you to achieve the best outcome for your child and family.
We offer free
consultations in matters of divorce and post decree issues. Please contact our
office at 312-640-0500 if you would like to schedule an appointment.
In my experience this is a call
that causes panic in even the calmest among us. Visions of their children taken
from their homes and the notion that some harm has been caused and that the
parent is being accused of some wrong doing makes families feel exposed and
scared.
Here are some frequently asked questions that may help in advising clients or when you are confronted with a call from a DCFS worker. This list is not exhaustive and is not intended as legal advice. Every situation is different. Call an attorney for advice prior to speaking to DCFS.
Can I refuse to talk
to DCFS or refuse to allow my children to be interviewed?
Yes. However, this refusal will be used against you. DCFS
may then determine that they should interview your children at school or take
even more serious steps. If the police are involved and there is a criminal
investigation, you should absolutely consult an attorney before speaking to
DCFS.
Am I allowed to have
an attorney present for the interview?
Yes. You are entitled to speak to an attorney before
cooperating with the DCFS investigation.
What if I don’t know
why DCFS is investigating me or my family?
You should ask in the very first contact with the DCFS
investigator what the specific allegations or what you are being accused of? Be
polite and respectful regardless of how angry you feel about the allegations.
You are not entitled to know who made the allegations.
Does my child have a
right to have someone with them when they are interviewed?
Yes. You should insist that they have someone else present
when they interview your child. You should also have another person in the room
with you when you are interviewed.
What if DCFS tells me
I can only have limited or no contact with my child and insists on a “safety
plan”?
Call your attorney. If that isn’t possible, have another
adult in the room with you when you review the conditions and terms of the
safety plan.
If you are a parent or a mandated reporter under Illinois
law please feel free to contact our office for a consultation regarding your
legal rights regarding DCFS investigations and reporting.
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