The Role of the Guardian Ad Litem in Divorce or Parentage Cases

What is a guardian ad litem?

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:

  1. The wishes of each parent seeking parenting time;
  2. The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
  3. 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;
  4. Any prior agreement or course of conduct between the parents relating to the caregiving function with respect to the child;
  5. 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;
  6. The child’s adjustment to his or her home, school, and community;
  7. The mental and physical health of all individuals involved;
  8. The child’s needs;
  9. 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;
  10. Whether a restriction on parenting time is appropriate;
  11. 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;
  12. The willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
  13. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
  14. The occurrence of abuse against the child or other member of the child’s household;
  15. 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);
  16. 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
  17. 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.         

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Elements of an Effective Parenting Plan for Divorcing Couples

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)

  • Co-Pays?
  • Shared?

Resources:

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Attorney Assisted Mediation: An Option for Divorcing Clients

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.

312-640-0500

mmoran@grundlaw.com

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Special Needs Considerations in Divorce

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.

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Responding to DCFS: What to do if The Department of Children and Family Service (“DCFS”) calls or shows up?

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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Selected Bibliography for Children and Divorce

Two Homes by Claire Masurel

Dinosaurs Divorce by Lauren Krasny Brown and Marc Brown

My Family’s Changing by Pat Thomas

The Invisible String by Patrice Karst

It’s Not Your Fault, Koko Bear  by Vicki Lansky

I Don’t Want to Talk About It, by Jeanie Franz Ransom

What Can I Do? A Book for Children of Divorce by Danielle Lowry

It’s Not The End of the World by Judy Blume

Divorce is Not the End of the World by Zoe and Evan Stern

Mom’s House, Dad’s House for Kids by isolina Ricii

Divorce is the Worst by Anastasia Higginbothom

A Brand New Day: Banana Split Story by A.S. Chung and Paula Bossio

Was It the Chocolate Pudding? A Story for Little Kids About Divorce by Sandra Levins

Fred Stays with Me by Nancy Coffeit and Tricia Tusa

Living with Mom and Dad by Melanie Walsh

My Mom and Dad Don’t Live Together Anymore by Judith Aron Rubin, Ph.D

How it Feels When Parents Divorce by Alfred A. Knopf

When My Parents Forgot to be Friends by Jennifer Moore-Malinois

What in the World Do You Do When Your Parents Divorce? A Survival Guide for Kids by Kent Winchester and Roberta Beyer

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Special Needs Consideration in Divorce

This article is intended to provide practical assistance to professionals and clients who are dealing with a family with a child with special needs. Many of these cases are factually complex and involve considerations that are outside of the normal course of a divorce.

The First Step is to Not Overlook Special Needs Considerations in Divorce or Post-Decree Issues. The number of children with disabilities is significant. The prevalence of autism in children is now 1 in 68. (CDC 2018) There is conflicting evidence that having a child with a disability increases the likelihood of divorce. What is known is that having a child with special needs complicates the divorce process and requires careful consideration of many factors in counseling and representing clients.

For many parents contemplating divorce, the first consideration when one or more of the children have a disability is how and whether they will manage the complications of parenting and supporting a special needs child.  At the initial client interview, when there are children (including older children), one of the initial questions I ask is whether any of the children have special education issues or have been diagnosed with a disability. If the answer is yes, then I use a comprehensive checklist to assist me in getting a thorough understanding of the child’s needs in the context of this family. It is important to ask detailed questions about the nature of the disability. It is also a good idea to request documents (e.g. evaluations, school records, Individual Education Plans (IEP)) that provide detailed information regarding the child’s disability.

As a starting point ask whether a child receives special education services in school. Does the child have an Individualized Education Plan (IEP) or a 504 Plan? * Ask the client to describe what services (e.g. speech, occupational therapy, counseling) the child receives and request a copy of the documents as a resource regarding the needs of the child. Typically, asking for the last two years of educational records will be sufficient. The IEP and the 504 Plan will often have useful information regarding the child’s educational and related issues, including a description of how the disability impacts their functioning in school and in life.  In the process of reviewing the IEP or 504 Plan, you will learn about the school district and the parent’s input into the discussion. This is relevant information when deciding who or whether a parent will be the designated parent for school district purposes, the allocation of parenting time and decision making. It also provides important data about the severity of the child’s needs and may signal a discussion regarding a departure (upwards) from guideline support. In addition to the school documents, requesting a copy of any evaluations provides yet another source of relevant information. In addition to the IEP, I ask the client to provide me with a list of treatment providers and other resources.

It is not uncommon parents to disagree about the nature and severity of the child’s disability. Determining whether the parents are in agreement about the special needs of the child and the current interventions is an early essential step since it may shape the way you discuss and counsel your client regarding the Allocation of Parenting Time and Decision Making. If the parents are in substantial disagreement about what the child’s needs are, this may make shared decision making inappropriate. Asking the client whether they are able to work together with the other parent and cooperate concerning their child is an essential early inquiry.

Reviewing the statutory language in 750 ILCS 5/602.5 is a starting point for the allocation of parental responsibilities and decision making. The statute states in subparagraph(a) that the court shall allocate decision-making responsibilities according to the child’s best interests. Nothing in the Act requires that each parent be allocated decision-making responsibilities. The significant issues that the statute refers to when considering an allocation of parental responsibilities and decision making are as follows:

Those significant issues shall include, without limitation, the following:

(1)   Education, including the choice of schools or tutors.

(2)   Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.

(3)   Religion, subject to the following provisions:

(4)   Extracurricular activities.

 (c) Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision making the court shall consider all relevant factors, including without limitation the following.

(1) the wishes of the child; (not an absolute) (2) the child’s adjustment to his or her home, school and community; (3) the mental and physical health of all individuals involved; (4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision- making; (5) the level of each parent’s participation in past significant decision-making with respect to the child; (6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child; (7) the wishes of the parents; the child’s needs; (9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s needs; (10) whether a restriction on decision-making is appropriate under Section 603.10.

The cases interpreting this statute and its predecessor are very fact specific and tend to give unequal weight to each of the factors depending on the circumstances of each case. No one factor appears to be controlling in the appellate decisions. Clearly, it is in the child’s interests for both parents (if appropriate) to share decision making and parental responsibilities in a way that works for the individual family and keeps the child’s best interests front and center.

It is presumptive under the Section 602.7 (b) that both parents are fit to have unrestricted parenting time. However, determining early on whether the parents are in agreement regarding the needs of the child and the caregiving arrangements is critical. Reviewing with your client the factors set out in 750 ILCS 5/602.7 (b) (1) and the issues presented by their special need’s child provides a framework for decision making and drafting of the Parenting Agreement and Allocation Judgment. Parents may disagree on what is in the best interests of their child with a disability. For example, a consideration of whether one parent has and will continue to be the primary caregiver impacts all aspects of the case. In my practice it is common that one parent has taken on the role of case manager in medical and educational decision making. This parent has been the one on the ground every day managing the complex decisions for the child. Judges should be made aware of the roles historically played by each parent as a pivotal consideration in allocation of decision making.

In many cases the parents can no longer afford for one parent to be underemployed or unemployed following the divorce and the resulting separate households. Clients may be in agreement about the needs of the child but may have more difficulty determining a schedule that works in the new family configuration. Standard parenting plans rarely fit children with disabilities. Therefore, the allocation of parenting time may require creativity, flexibility and a lawyer who is familiar with the challenges of the individual child’s disability. For example, some children (even non-disabled children) struggle with transitions and that needs to be accounted for in any allocation of parenting time. This makes a presumed equal parenting schedule inappropriate if this arrangement won’t be in the child’s best interest.

No child with a disability is the same. In counseling clients it is important to avoid relying simply on a label as short hand for a description of the child. Details matter. Even if parents are fully cooperating and aligned with their child’s needs, if there are other children, this may require parents to navigate different parenting schedules to accommodate the needs of the entire family. See In re Marriage of Capella, 2018 WL 310 5765, Ill. App. 5th District (July, 2018) [not for a child with special needs] for an analysis of the application of the statutory factors in the allocation of parenting time.

Special Education Issues:

Residency: In cases of divorced or separated parents when only one parent has legal guardianship or custody, the district in which the parent having legal guardianship or custody resides is the resident district. When both parents retain legal guardianship or custody, the resident district is the district in which either parent provides the student’s primary regular fixed night-time abode resides; provided that the election of resident district may be made only one time per school year. 105 ILCS 5/14-1.11.

750 ILCS 5/606.10 Designation of custodian for purposes of other statutes.

Solely for the purposes of all state and federal statutes that require a designation or determination of custody or a custodian, a parenting plan shall designate the parent who has the majority of parenting time. This designation shall not affect the parent’s rights and responsibilities under the parenting plan. For purposes of Section 10-20.12b of the School Code only, the parent with the majority of the parenting time is considered to have legal custody.

When both parents share educational decision-making and agree on the needs of the student it is easier to navigate the special education process. Urging parents who may be conflictual in other areas to attempt to cooperate in the educational realm makes it more likely that the educational needs of the child will be met.

Students are eligible for special education beginning at age 3 through the day before their 22nd birthday. For more severely disabled students, remaining in school as long as possible makes sense in order to take advantage of the additional time to receive services and interventions
the special education provides them before “aging out”.

Child Support:

The statutory amount of child support may be insufficient to meet the needs of the child with special needs. Frequently, both parents are already spending well above the costs associated with typical children. Many disabled children require specialized care that may not be covered by insurance and results in significant out of pocket expenditures for the family. For example, in cases where a child is on the autism spectrum, insurance may or may not cover the necessary interventions.

In this situation, it may be appropriate to discuss with the parties, and if necessary, ask the court to make a finding for a deviation from statutory guidelines.  Under 750 ILCS 5/505, Section 3.4) Deviation Factors reads as follows: In any action to establish or modify child support, whether pursuant to a temporary or final administrative or court order, the child support guidelines shall be used as a rebuttable presumption for establishment or modification of the amount of child support. The court may deviate from the child support guidelines if the application would be inequitable, unjust or inappropriate. Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation. These reasons may include:

(A)   Extraordinary medical expenditures necessary to preserve the life or health of a party or a child of either or both of the parties;

(B)   Additional expenses incurred for a child subject to the child support order who has special medical, physical, or developmental needs; and

(C)   Any other factor the court determines should be applied upon a finding that the application of the child support guidelines would be inappropriate, after considering the best interests of the child.

In gathering information relevant to a request for a deviation from guidelines, you should ask your client to produce invoices for treatment providers, a schedule of the child’s day, including travel to outside therapists, number of hours of care each day and the specifics of those interventions.

750 ILCS 505.2 provides for the provision of health insurance in addition to child support obligations.

Typically, child support terminates at age 18, to the earlier to occur of graduation from high school or age 19, if the child is still attending high school at age 18. However, children who would otherwise be emancipated may require ongoing life-long support.

Non-Minor Children with a Disability

750 ILCS 5/513.5 governs the issues related to support for a non-minor child with a disability. To be “disabled” for purposes of § 513.5, the child must have a “physical or mental impairment that substantially limits a major life activity” and is either generally regarded or has been recorded as having the impairment. § 513.5 (c). Disabled for purposes of the § 513.5 is not necessarily the same as “disabled “ for the purposes of the Probate Act, and it is not a prerequisite that the child first be declared disabled in a probate court proceeding.

The factors that the court must consider in making an award under 750 ILCS § 513.5 include both parent’s financial resources to meet their needs including retirement savings, the standard of living had the marriage not been dissolved, the child’s financial resources, and any other resources, such as government benefits. § 513.5(b). In two unpublished orders under Rule 23, the Second District discussed the factors that should be considered in awarding post majority support. See In Re Marriage of Wolf and Wolf, (2017 IL App (2d) 161109-U. Also, See, In Re Marriage of Hemphill v. Robert Hemphill, 2017 IL App. (2d) 160833-U. In Hemphill, the court held that the trial court’s finding that the parties 20 year- old daughter was disabled was not against the manifest weight of the evidence. The court did not abuse its discretion when it ordered the father to pay non-minor child support and all uncovered medical expenses.

There are many unique concerns that must be addressed in a divorce settlement regarding special needs children. As the child reaches majority it is essential that the divorce agreement be structured so that the child does not lose his or her eligibility for SSI and or Medicaid or other needs-based benefits. If one spouse receives support for the benefit of the special needs child this may impact the child’s ability to receive benefits. At the time of the divorce, it is essential to anticipate, structure and carefully draft language to allow for continued “support “in a Marital Settlement Agreement. This can be done in a number of ways, specifically, the parties can arrange for a Special Needs Trust to be created for the benefit of the child. If the divorce pre-dates the recognition or identification of the child as one with a disability, the parties may need to amend their child support agreement to prevent an adverse impact on government benefits. For all clients, it is important to discuss potential and necessary modifications to their estate planning document.

I recommend the use of a checklist in counseling clients with children who have disabilities and in drafting Parenting Plans and Allocations of Decision Making as well as the Marital Settlement Agreement.

CONCLUSION: Given the high incidence of families with children with disabilities it is essential to be aware of the unique considerations faced by divorcing families to ensure that the rights of the parties, most importantly, the children are addressed in this context.

             

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Changes to the New Tax Law that will Impact How Maintenance and Alimony is Taxed

In the past, maintenance or what has been formerly referred to as alimony was taxable to the person receiving the payment (obligee) and deductible to the person who was paying (obligor). Federal law determines the taxability of maintenance. As of December 31,2018, all of this is going to change. After this date, if an award of maintenance is deemed appropriate by a judge or by agreement, maintenance will no longer be income to the receiving spouse and will not be deductible by the paying spouse. This may significantly impact how divorcing couples choose to draft their agreements and make financial decisions in the context of divorce negotiations.

The ability to deduct maintenance payments has in many cases been a motivator to the higher wage earner to settle a case by paying the spouse with the lower income more substantial support. Removal of this option may make it more difficult to resolve cases.
The person receiving maintenance who no longer has the ability to declare this as income will potentially be in a lower income bracket and may be eligible for the child tax credit or other tax benefits.
Resource:

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Estrangement and Parental Alienation are NOT the Same Thing

In my years of practicing family law and working with all kinds of family structures in my divorce practice, as well as in the other areas of law that we deal with in our office (e.g. special education, mental health law, juvenile law), the words alienation syndrome are often mentioned by clients either during a divorce or in the aftermath and ongoing conflict. It is important to distinguish the phenomena and they are quite different.

Estranged children

The difference between an estranged child and an alienated child is that an estranged child has grown apart from the parent for reasons that are, to be blunt, reasonable and realistic. An alienated child, however, is the victim of one parent’s efforts to destroy the child’s relationship with the other parent.

An estranged child is either ambivalent about the other parent or enraged by the other parent. These feelings are, however, justified by the child’s experience of the separation or by the child’s experience of that parent.

These children are usually estranged as a result of:

  • witnessing violence committed by that parent against the other parent,
  • being the victim of abuse from that parent,
  • the parent’s persistently immature and self-centered behavior,
  • the parent’s unduly rigid and restrictive parenting style, and/or,
  • the parent’s own psychological or psychiatric issues.

The point here is that the child’s experiences make the child’s rejection of a parent reasonable, and are an adaptive and protective response to the parent’s behavior.

Alienated children:

There is an ongoing debate about whether or not parental alienation syndrome even exists. On both sides of the aisle, you will find strident detractors and supporters. The recent research would indicate that alienation is a term that describes a wide spectrum of behavior and attachment by children to their parents.

Whatever the cause or the existence of syndrome, there are families who are damaged by the conduct of the parties in a divorce and in subsequent parenting disputes.

There are no sound bites or easy fixes. Resources exist for parents who are struggling to connect with their children and to navigate a high conflict divorce and its aftermath.

Resources:

Parental Alienation: The Handbook for Mental Health Professionals, by Lorandos, D.

High Conflict Custody Battle, by Baker, Amy J.L.

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Statutory Factors that Judges Utilize in the Allocation of Parent Responsibilities: Decision Making

Parents can certainly agree to share decision making and allocation of time. However, in the absence of an agreement, courts will look to the factors outlined in the statute in determining parenting time and decision making. The court may even appoint an expert to make findings regarding the allocation of parenting time and allocation of parental responsibilities with the applicable factors in mind under the statute.

Trying to reach an agreement with the other parent (when possible) is much better for your child and also affords you control over the outcomes. If you are unable to agree, the Judge will take into consideration the specific facts in your case and how they fit into the statutory framework for allocating parenting time and decision making. Of course, not every case will necessarily involve all the factors.
The statute below enumerates the factors the court considers. However, it needs to be understood and read in the context of other statutes. Section 600, 602, 602.1, 604.10 and 603.10
750 ILCS 5/602.5) 
    Sec. 602.5. 
Allocation of parental responsibilities: decision-making.
    (a) Generally. The court shall allocate decision-making responsibilities according to the child’s best interests. Nothing in this Act requires that each parent be allocated decision-making responsibilities.
    (b) Allocation of significant decision-making responsibilities. Unless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities, or the issue of the allocation of parental responsibilities has been reserved under Section 401, the court shall make the determination. The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child. Those significant issues shall include, without limitation, the following:
(1) Education, including the choice of schools and tutor
(2) Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.
(3) Religion, subject to the following provisions:
(A) The court shall allocate decision-making responsibility for the child’s religious upbringing in accordance with any express or implied agreement between the parents.
     (B) The court shall consider evidence of the parents’ past conduct as to the child’s religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents.
     (C) The court shall not allocate any aspect of the child’s religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child’s religious upbringing that could serve as a basis for any such order.
(4) Extracurricular activities.
(c) Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:
(1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;
(2) the child’s adjustment to his or her home, school and community;
(3) the mental and physical health of all individuals involved;
(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
(5) the level of each parent’s participation in past significant decision-making with respect to the child;
(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
(7) the wishes of the parents;
(8) the child’s needs;
(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
(10) whether a restriction on decision-making is appropriate under Section 603.10;
(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(12) the physical violence or threat of physical violence by the child’s parent directed against the child;
(13) the occurrence of abuse against the child or other member of the child’s household;
(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
(15) any other factor that the court expressly finds to be relevant.
    (d) A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.
(e) In allocating significant decision-making responsibilities, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.
(Source: P.A. 99-90, eff. 1-1-16.)

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