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Custody

Special Needs Considerations in Divorce/Custody Cases

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Divorce and or Separating is difficult under any circumstances. When there is a child or children with special needs involved this makes matters more complicated. There is no one-size fits all solution.     

Residency and Choice of School District:

In Illinois the statute does not use the word “custody”. One parent may be designated as the residential parent for school district purposes but that does not impact decision making or parenting time unless the Parenting Plan specifically says so. It is a hot button issue for many parents. The key concern in discussing residency is whether the school district can meet the child’s educational needs.

In allocating parenting time, the statute requires the court to allocate parenting time according to the child’s best interests. Parents can certainly agree on parenting time but in the absence of agreement the court will make the decision. The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) 750 ILCS §5/602.7 outlines the numerous factors a court considers in a allocating parenting time. The needs of the child are one of the key factors for consideration. Other factors that may be essential to consider is 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…

Courts may need to be educated on the needs of your child. This can include educational, medical and mental health concerns. Often in contested matters the court will appoint a Guardian ad Litem who will want to review any evaluations, outside reports and potentially speak to teachers, and other professionals involved in your child’s life. If there is no GAL, you should provide this information to your attorney.

For many children on the autism spectrum, maintaining a stable, satisfactory environment can take on far more weight than for neurotypical children. The ability to manage transitions and timing of these exchanges is an important consideration in a determination of parenting time.

Allocation of Parental Responsibilities: Decision Making

Under 750 ILCS §5/602.5 the court shall allocate decision-making responsibilities according to the child’s best interests. The areas of significant decision making are as follows:

  • Education, including the choice of schools and tutors.
  • Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising from or resulting from those needs.
  • Religion
  • Extracurricular Activities

If parents agree to share decision-making the court will not interfere in that decision.          

Extraordinary Medical and Educational Expenses

Almost without exception, children with disabilities require many additional services, including therapies, tutoring, medical equipment and other necessities. The costs of these should be accounted for in any parenting allocation and child support calculation. When appropriate the court may deviate from the statutory child support guidelines to ensure that the child’s needs are met.

Other Issues to Consider:

  • Communication between the Parents: Parenting a complex child with disabilities requires frequent communication. I always recommend parents use an app such as OFW or Talking Parents. This can keep communication civil, allow tracking of expenses and calendar sharing.
  • Access to Professionals: Ideally both parents are involved in all aspects of a child’s life and are able to attend appointments with professionals.
  • Medical Equipment and Adaptive Capacity of Each Home.

GET HELP WITH SPECIAL CHILD CUSTODY ISSUES FROM THE CHILD and FAMILY LAW CENTER, an ILLINOIS LAW FIRM. SEE CONTACT FORM TO SET UP CONSULTATION. CALL OR E-MAIL at (847)-940-2800 or mickim@lawforchild.com

 

 

Parenting Coordination

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Parenting Coordination serves two purposes:

  • To educate parents to problem solve and work through their disagreements.
  • To make decisions when the parents can’t or won’t.

Parenting Coordination starts with a court order or written agreement for these services. Whatever document is used it is important that it be as specific as possible. Rule 909 clearly outlines what the P.C. can and cannot do. Section 909 informs as to the duties of a P.C.

  • Assists coparents with clarifying, implementing, and complying with their parenting plan.
  • Helping co-parents reduce their misunderstanding, clarify priorities, explore possibilities for compromise, and develop methods of collaboration in parenting their children.
  • Educating coparents about their children’s needs in order to make timely and appropriate decisions in a manner consistent with the children’s developmental and psychological needs.
  • Timely resolving conflicts that may arise concerning parenting plans in order to reduce the amount of damaging conflict between coparents to which children are exposed and diminish a pattern of unnecessary re-litigation about child related issues.

Basis for the appointment of a Parenting Coordinator. Following the entry of an order of a parenting plan or prior to entry if approved by a court, after considering the allegations or evidence of intimate partner violence where one coparent has exhibited or continues to exhibit or continues to exhibit patterns of violence, threats, intimidation, and coercive control over a coparent, a parenting coordinator may be appointed by the court when deemed in the best interests of the child (ren) due to any of the following:

  • The coparents have failed to adequately cooperate and communicate about issues involving their children.
  • The coparents have been unable to implement the existing parenting plan or parenting schedule.
  • Mediation has not been successful or has been determined by the court to be inappropriate.
  • The agreement of the coparents; and
  • For such other reason as the court deems appropriate that does not exceed the authority under this Rule.

Duties of the Parenting Coordinator. A Parenting Coordinator facilitates the resolution of conflict among coparents regarding an existing parenting plan in a marital dissolution, parentage or post judgment case to”

  • Monitor parental behaviors, including the compliance or lack thereof, with orders entered in their case by the court.
  • Mediate and make recommendations with respect to, disputes between the coparents upon request of a coparent or court order.
  • Make recommendations to the coparents for outside resources as needed and/or guidelines or rules for communication between the coparents.
  • Document allegations of noncompliance for the court; and
  • Make recommendations to the court upon proper notice and petition.

A parenting coordinator is authorized to make specific recommendations regarding the existing parenting plan including, but not limited to:

  • The time, place, and manner for the pick-up or drop off of the children in relation to the coparent’ designated parenting time or nonparent visitation.
  • Disputes regarding the extent nature of the children’s participating in educational and extracurricular activities including payment of expenses;
  • Minor alterations of parenting time or non -parent visitation to accommodate changes in schedule or availability of the child or coparent, including make-up time if permitted by prior court order;
  • Holiday scheduling
  • Discipline and problematic behavior issues;
  • Health and personal care issues;
  • Any other specific issues assigned to the parenting coordinator by the court or agreed by the coparents that does not exceed the authority under this Rule.

Off Limits to the Parenting Coordinator:

A parenting coordinator shall not make recommendations as to:

  • Allocation of parental responsibilities for decision making;
  • Initial allocation of parental responsibilities for parenting time and any allocation of parenting time beside minor alterations in paragraph E.
  • Relocation;
  • Establishing visitation by a nonparent, or
  • Child support, spousal maintenance, or the allocation of property or debt of the marriage;

How is the Parenting Coordinator Paid?

The parties shall pay the parenting coordinator fees, which may include a retainer fee, as ordered by the court upon consideration of the financial resources of the parties or agreed upon in writing by the parties and the parenting coordinator. If parties cannot afford to pay for a parenting coordinator, the court may appoint a parenting coordinator from the Domestic Relations Division’s approved roster at a reduced fee or pro bono basis.

 Tips for Working with your Parenting Coordinator

1.Don’t spend the time telling the Parenting Coordinator everything that happened in your marriage, the divorce litigation, mediation and all the terrible things about your spouse.  

2. Be prepared for your meetings. Bring an agenda if that helps you to be organized. 

3. Be clear about the issues you want the Parenting Coordinator to address?

4. Prioritize the issues that are most important to your children.

5. Focus on your children’s needs.

6. The Parenting Coordinator is not your therapist.

For a consultation regarding your divorce, post-decree or other family law related matters please contact our office at (312)-640-0500 or email me at mmoran@grundlaw.com

Divorce Involving Special Needs Children: Legal Considerations Under Illinois Law

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Divorces involving children with special needs present distinct legal and practical challenges. Family law practitioners in Illinois must navigate not only the traditional aspects of custody (now referred to as “allocation of parental responsibilities”), parenting time, and support, but also the unique needs of these vulnerable children whose care often requires additional planning, resources, and long-term considerations.

Allocation of Parental Responsibilities and Parenting Time
Under Illinois law (750 ILCS 5/600 et seq.), courts must allocate parental decision-making authority in four key areas: education, healthcare, extracurricular activities, and religious upbringing. When a child has special needs, healthcare and education decisions become particularly significant.
Judges often look for highly detailed parenting plans that address:
• Coordination of medical care, therapies, and educational services (including IEP or 504 Plan meetings).
• Transportation logistics for medical appointments or therapy sessions.
• Consistency in therapeutic interventions and treatment plans.
• Plans for emergency medical situations.
• Specialized childcare or supervision needs.
Courts expect parents to demonstrate a clear understanding of the child’s current and future needs. A failure to address these details may lead to additional litigation or modifications post-divorce.

Child Support and Special Needs
Illinois calculates child support using an income shares model (750 ILCS 5/505). However, when a child has special needs, courts may deviate from the standard formula to account for extraordinary expenses such as:
• Ongoing medical treatments
• Therapies (occupational, speech, behavioral, etc.)
• Specialized equipment and adaptive technology
• Private education or specialized programs not covered by public services
• Respite care or personal attendants
Practitioners should present detailed evidence of these expenses, including documentation from medical providers, therapists, and educational professionals.


Support Beyond Age of Majority
Illinois law (750 ILCS 5/513.5) allows for the continuation of child support beyond the age of majority if the child is physically or mentally disabled and not otherwise emancipated. This is a crucial provision for families of children with lifelong care needs.
Attorneys should help clients consider:
• The potential need for adult guardianship or powers of attorney.
• Coordination with government benefits such as SSI, Medicaid, and vocational services.
• Establishing a special needs trust to preserve eligibility for public benefits while providing supplemental resources.

Guardianship and Decision-Making in Adulthood
As a child with disabilities reaches adulthood, parents may need to pursue adult guardianship under the Illinois Probate Act (755 ILCS 5/11a). This can ensure that parents (or designated guardians) retain the legal authority to make critical decisions on behalf of the child.

Collaborative Approaches and Expert Involvement
Divorces involving special needs children often benefit from collaborative law, mediation, or the inclusion of child specialists, medical experts, and financial advisors. The involvement of a special needs planner can help families navigate complex financial and legal structures such as:
• Special needs trusts (third-party and first-party)
• ABLE accounts
• Long-term care planning

Conclusion
For Illinois family law practitioners, cases involving children with special needs require heightened diligence, a thorough understanding of both family and disability law, and a commitment to long-term planning. Attorneys must help their clients anticipate not only the immediate post-divorce period but also the evolving needs that may extend well into adulthood.

The Minor’s Right to Confidentiality under Illinois Law

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Parents are often shocked at how much control their minor child has over their mental health records. In a post-dissolution of marriage proceeding, the petitioner mother sought to restrict the father’s parenting time with their minor child based on allegations that the father would continue to interfere with the medical services necessary for the child’s mental health. The father moved for production of the child’s medical, psychiatric, psychological, and school records, and the mother objected based on the child’s statutory privilege to keep the requested records confidential and objected to disclosing the records to his father. The trial court denied the father’s entire request for production of the child’s records. The Appellate Court addressed the issues that arise in the context of divorce and post-decree matters, specifically a minor’s right to deny access to his or her mental records, whether in the context of mental health treatment by private practitioners as well as in a therapeutic day school.

The minor was seeing a therapist and attended a therapeutic day school. Father sought both the entire school records as well as the private treatment provider’s records. Mother and the child representative were both in possession of the records. The minor objected to the disclosure of these records to the father.

The Appellate Court addressed two certified questions regarding these issues. The issues raised by the modified certified questions of law are whether a trial court, in a proceeding related to a petition to restrict parenting time under section 603.10 of the Marriage Act, (750 ILCS 5/603.10 (West 2018), where the allegations involve the mental health of a child who is at least 12 but under 18 years old, may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child(1) the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want the evidence disclosed to one parent; (2) the ability to discover the child’s medical records concerning the child’s mental health and school records from a therapeutic school even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ allocation parental allocation judgment; and (3) access to the child’s mental health and therapeutic information that the child’s representative has reviewed.

The father in this case, argued that he wasn’t seeking records from the therapist but from his former wife. The court found that the father cannot avoid the effect of the child asserting his privilege against disclosure by seeking the documents from another source besides the therapist. The court further held that this privilege is not absolute and looked to the statute for clarity.
Section 4(a)(3) of the Confidentiality Act provides:
§ 4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s records or any part thereof:
(3) the parents of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years of age from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any [.] (Emphasis added.) 740 ILCS 110/4(a)(3) (West 2018).

The court ruled that the father in this case was entitled to the limited information that is outlined in the statute but nothing more after petitioning the court for that access. The fact that the entire record was disclosed to the mother, or the child representative does not nullify the child’s objection to the same information to the father.

The father also sought records from the therapeutic day school where his child attended asserting that he was entitled to education records under the terms of the Allocation Judgment. The court recognized the ambiguity created by the records kept by a therapeutic school and reasoned as follows:
Section 5(f)(1) of the Student Records Act recognizes the patient-therapist privilege and keeps confidential information communicated in confidence to a psychologist or other psychotherapist, school social worker, school counselor or school psychologist intern who works under the direct supervision of a school social worker, school counselor, or school psychologist. This list of protected communications includes information communicated in confidence to a teacher of an academic subject at a therapeutic school. 105 ILCS 10/5(f)(2) (West 2020). “Construing the provisions of the Student Records Act and the Confidentiality Act harmoniously, we conclude that privileged records and communications under the Confidentiality Act do not include a minor’s grades, grade level, academic assessments, and similar information, even if that child attends a therapeutic day school. Consequently, a trial court cannot deny a parent access under section 4(a)(3) of the Confidentiality Act access to the non-privileged school records of a minor child who attends a therapeutic day school, even if that child, who is at least 12 but under 18 years of age, objects to the parents request to inspect and copy those records. Furthermore, the trial court may conduct an in-camera review to ensure that the child’s therapeutic school’s records do not contain any privileged information concerning the child’s mental health services beyond the limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, which the parent is entitled to receive. 740 ILCS 110/4(a)(3) (West 2018).

Divorce Checklist

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It is not uncommon for someone to consult with our office when they are just beginning to contemplate the possibility of divorce. Often, they want basic information about the legal process and their rights as well as advice on how to prepare for such a major life event. My clients have found it helpful to have a checklist that they can have on hand as a reference. It has been my experience that being organized helps in developing a plan and is useful in calming some client’s anxiety. Below is a checklist and although it is something that may vary from case to case it does provide a framework for people contemplating divorce.

Checklist

  1. Your child or children’s names and dates of birth. If there are special needs considerations that will impact aspects of the divorce it is important that those are detailed to your lawyer.
  2. Date and location of marriage or civil union.
  3. Your spouse’s name and employer.
  4. Information regarding your spouse or your being self-employment where applicable.
  5. Your employer’s name. Current income.
  6. The last three years of your tax returns. Mortgage statements on the marital residence.
  7. A copy of any prenuptial or postnuptial agreements.
  8. A summary of your debts.
  9. Vehicles.
  10. A list of property including retirement accounts owed before the marriage.
  11. A list of property, including retirement accounts accumulated during the marriage.
  12. Expenses for the children. (e.g. tuition, camps, tutoring)
  13. Vacation property.
  14. A list of any stock, stock options or investment accounts.
  15. An estimated monthly budget that should include all costs including utilities, insurance. This is an important tool in determining what the financial future holds for you and your family.
  16. An inventory of the personal property in your home. (e.g. art, furniture, electronics)

Non-Financial Issues

  1.  Mental Health concerns for either party that will impact parenting time or decision making.
  2. Health concerns.
  3. Parenting Plan proposals.
  4. Decision Making (shared, sole)
  5.  Post-divorce plans and vision for what post-divorce life will look like for your family.

            Not all of these things will be resolved immediately. Divorce is a process. It is always best if the parties can work together on these matters but that isn’t always possible. Regardless of the posture of your case it is essential that both parties be fully informed about the financial and child related issues in order to make the best decisions for the family.

            If you are exploring the possibility of divorce, already committed to divorcing or have post-decree issues please feel free to contact our office for a free consultation. Our office is dedicated to advocating for the best outcomes for children and families. Call (312)-640-0500 or email me at mmoran@grundlaw.com.  Consultations are available in person or by Zoom. Safety protocols are followed.

WHAT TO DO IF YOUR CHILD IS ARRESTED?

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Summer is upon us and as a general rule this is a time when our office gets calls from parents regarding their teenager or young adults arrest or questioning by police.

Have this discussion now. One time is not enough. Here are some Frequently Asked Questions that I hope will educate you and your teenager.

What should my teenager do if they are stopped by the police?

  • Be respectful.
  • Keep your hands out of your pocket and visible to the police.
  • Tell your child to provide his or her identification to the officer when asked.
  • Provide the insurance information and registration if they are driving.
  • Give them the name of your parents.
  • Politely but firmly indicate that they have been told by their parents not to answer any questions. Ask them to call your parents or an attorney. Have them state that they will not answer any questions. This is hard for most young people. It is very common even when they know that they shouldn’t talk to the police for them to give great detail or even sign a written statement. Police can be intimidating and often will promise that if the young person tells them what happened they won’t be arrested.
  • The police are not your friend.

Do I have to be present if my child is questioned? Not necessarily. Students are often questioned at school and describe to school officials the details of the incident. They are not “in custody”. Students should be instructed to ask to call a parent before being questioned at school.

However, Illinois law requires police to “immediately make a reasonable attempt to notify the parent” after a minor is taken into custody.

Should I consult an attorney? The answer is yes. The stakes are high and parents should not attempt to play lawyer. Be very cautious about urging your child to tell an officer everything and as a result waiving their rights. This isn’t the time to teach your child a lesson.

Can my teenager or young adult with a disability be arrested? Yes.

How can I prepare my child? If your child has a disability it is essential that you prepare them for interactions for police contact. Parents are often shocked that their child with autism or other developmental disabilities can be questioned by police and arrested. Some families I work with have a script that their teen can practice regarding police contact. It is helpful that this “script” include a checklist of what to do. Autism/Advocacy Network aane.org has a downloadable wallet card that an individual with autism can carry and provide to police.

If your child has been arrested, ticketed, or you are concerned that they will be facing legal consequences please call our office for a consultation at (312)-640-0500.            

Co-Parenting in the Age of Coronavirus

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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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Apps for Divorcing Parents

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FAQ: Why use a co-parenting app?

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 and Divorced or Separating Families

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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.

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

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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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