The Illinois House is considering a bill that would create a rebuttable presumption that equal parenting time is in the best interests of children of divorced families. In other words, divorced couples would split parenting time 50/50. Under current state law, the custodial parent has physical custody of the child and the noncustodial parent is given visitation rights. But equal time is not required, and it is certainly not guaranteed.
If House Bill 4113 becomes law, courts may only modify or restrict parental responsibilities if they find by clear and convincing evidence that the parent is not a fit parent and that his or her exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
What Is a Rebuttable Presumption?
A rebuttable presumption is a legal assumption made by a court. The court assumes something is true unless someone proves that it is not. Under H.B. 4113, courts would assume that equal parenting time is in the best interests of the child unless one parent proves by clear and convincing evidence that the other parent is not a fit parent.
“Clear and convincing evidence” means “that measure or degree of proof that will produce in the mind of the trier of fact a high degree of certainty as to the truth of the allegations sought to be established.” The court must firmly believe - based on the evidence presented - that it is highly likely that the allegations are true.
A Child’s Best Interests
The best interests standard refers to a list of factors that courts use in approving child custody arrangements. Those factors include:
- The child’s wishes, if the child is mature and able to express reasoned and independent preferences.
- The parents’ wishes.
- How well adjusted the child his to his or her current home, school, and community.
- The mental and physical health of the child and both parents.
- The level of conflict between the parents and whether they can share decision-making responsibilities.
- Whether one parent participated more or less in decision-making responsibilities in the past.
- Previous custody agreements between the parents.
- The child’s needs and whether one parent is more capable than the other to satisfy those needs.
- Where the parents live in relation to each other and how difficult it is to transport the child back and forth.
- Whether a parent’s conduct seriously endangered the child’s physical, mental, moral or emotional health.
- How willing the parents are to encourage a close relationship between the child and the other parent.
Courts will consider these and any other factors that may be relevant to their decision. If H.B. 4113 becomes law, one or both parents may point to any of these factors to prove that equal parenting time is not in their child’s best interests.
Contact Us Today
Contact the experienced Naperville family law attorneys at the Roscich & Martel Law Firm, LLC, today for help making a child custody arrangement. We will help determine your best option and guide you through the legal process.