After a divorce or a break up that involves children, people immediately begin to invoke the word “custody.” The concept of custody is antiquated. Custody presumes that there can only be one parent who truly makes decisions and monopolizes the children’s time. This custody concept leaves the other parent as the parent “without custody” and only gets every other weekend at best.

Custody Cases in Illinois

In the meantime, every thinking person, including Illinois judges and the Illinois legislature, agrees that the best interests of the children is always to have maximal possible involvement with both parents. So, in 2016 the Illinois legislature modified the statutes to eliminate the word “custody” and replace custody with the word and concept “parenting time.”

This has not created a complete switch from a primary-parent/secondary-parent regime to a presumption of a 50/50 split of parenting time between the two parents. The Illinois statute requires that parenting time and parenting decision making be determined based on “the best interests of the child”.

The “best interests of the child” standard is completely vague in Illinois family law courts. There is no presumption in the statute. So, the courts just keep doing what they’ve always done: giving most moms lots of time and giving dads every other weekend.

What is a Guardian Ad Litem

Once a dispute about parenting time or parenting decision making is apparent, Illinois parents are required to attend mediation in an attempt to resolve their issues. If mediation does not resolve all of the parenting issues between the two parties, the courts will appoint a lawyer to represent the children and their best interests. This lawyer is called a Guardian Ad Litem and while their title sounds formal and legal, the Guardian Ad Litem’s job is really to investigate the facts on the ground.

The Guardian Ad Litem will interview the children, interview the parents and visit the parties’ respective homes. Finally, the Guardian Ad Litem will make a recommendation to the family court judge as to which parent should have what parenting time and parenting responsibilities. Judges will accept this recommendation and turn it into a binding legal order 90% of the time.

If a parent disagrees with a Guardian Ad Litem’s recommendation, that parent must prove to the family court judge that the Guardian Ad Litem’s recommendation is wrong. This is easier than it sounds. Most Guardian Ad Litem’s investigations are woefully limited to one to three interviews lasting less than an hour each. How can anyone make life determining decisions based on a few hours of observations. That’s exactly why their are Guardian Ad Litems, to dig into the details.

So, if you can prove the Guardian Ad Litem missed a salient fact in their analysis, the judge will likely discount the Guardian Ad Litem’s testimony and take your testimony more seriously as you, not the Guardian Ad Litem, are the one who “dug into the details”

In the end, parenting time and parenting decisions can be modified at any time based on a substantial change in either the parents or the children’s circumstances. So, any order of the courts is essentially temporary. So, in Illinois, both parents must remain vigilant in order to preserve or increase their parenting time (formerly known as custody).

Guest post from Russell Knight. Russell Knight is a family law and divorce lawyer in Chicago, Illinois. Russell Knight only does family law and divorce. “I wake up, I brush my teeth and I divorce people” says Russell Knight. Visit his website at: RDKLegal.com