A bill has been proposed in the Illinois House of Representatives that would require equal parenting time (50/50 time) in divorce and paternity situations as the default presumption. Currently, the default presumption is that parenting time should be weighted more heavily in favor of one parent or the other.
In some recent legislative changes, Illinois has gotten rid of the idea of a “custodial parent” and a “non-custodial parent”, but Illinois has kept the idea that one parent would have the majority parenting time, which was inherently implied in the custodial/non-custodial parent paradigm. A move is afoot to change that.
In this day in which equal rights are championed as a virtuous societal guarantee and enforced by the weight of the law, equal parenting time seems like a no-brainer. What could be fairer and more consistent with the idea of equality, one of our most highly valued principles?
Equality is usually a good place to start, but it may not be the right place to start when it comes to parenting time. The fact is that children need stability in order to thrive. Children of school age need stability to do well in school. Children who are constantly shifting environments have a more difficult time in school than children who have a stable environment throughout their school age years.
When parents get divorced, stability is always an issue. Things will not remain the same as they have been. That may be a good thing, overall, especially if there was unhealthy tension in the family, but maximizing stability in the lives of children who are already feeling a degree of instability is important for their overall health and well-being.
With children going to school, generally, five days a week, and having two-day weekends off, a presumption that parenting time should be split 50/50 is problematic. If we are focusing only on parental rights, it may be the “right” thing to do. But the focus in the law has always been on the best interests of the children when it comes to parenting time. Focusing on the best interests of the children suggests that 50/50 parenting time is not a good default position, at least for school age children.
That brings up another point. Individual circumstances require some unique accommodation. Not everyone has the same circumstance. The difference between school age and non-school age children, for instance, presents different circumstances that might suggest different approaches. But, that is just the start. Circumstances can very in any number of ways. Circumstances need to take into account work schedules, work flexibility, distance between the parents and many other factors.
Under the existing law, while the default assumption is unequal parenting time, a number of factors are applied, and a judge is free to award parenting time based upon all of the unique factors and circumstance of the parties. Even now, a judge could award equal parenting time if that would be in the best interests of the children, considering all of the factors and the unique circumstances of the parties. Changing the default position to equal parenting time would not necessarily result in equal parenting time in every circumstance, nor should it.
The question is, where do we start? We have to start somewhere. Given the fact that children spend more of their childhood years in school, than out of school, beginning with a presumption of unequal parenting time probably makes sense. Arbitrarily equalizing the parenting time, causing the children to switch back and forth during a school week just to equalize the parenting time, is not likely in the best interests of the children in most circumstances.
Of course, parenting time might be equalized by allowing the other parent all of the weekend time, and a majority of the summertime, but that probably isn’t fair either. In that scenario, one parent would have the unenviable task of being the disciplinarian, getting the kids ready for school every day, and not having as much “quality time” with the kids on weekends and during summer vacation.
It certainly is a dilemma. What parent would not want to maximize his or her time with the children? It really isn’t fair from a parent’s perspective. The important thing, however, is what is in the best interests of the children. This has always been the focus of the law, and it should continue to be the focus of the law. The unfortunate circumstance of a divorce is that family relationships change forever. They can never be put back to the way they were.
Again, this may, generally, be a good thing. If the marriage was working, the parties wouldn’t be getting divorced. The downside, though, is that the balance is changed forever. As a society, we need to keep our focus on what is in the best interests of the children. Certainly, maximizing the time the children have with each parent is in the best interests of the children, but that does not necessarily mean equal parenting time.
Ideally, parents would get along for the children’s sake, even though the parents were not able to get along for their own sake as spouses. In a perfect world, the parents would but aside their differences and always do what’s best for the children. A parent with a majority of the parenting time, to ensure stability for the best interests of the children, should be generous to allow maximal parenting time with the children and the other parent. We all know, though, that we don’t live in an ideal world.
The best a court can do, and the best society can do under the circumstances, is to ensure some stability for the children, and to encourage maximal parenting time with both parents under the circumstances. Until the model of school schedules changes, until working schedules change, and unless other wholesale changes occur in our society, its hard to see how arbitrarily equal parenting time is in the best interests of children who need a stable environment in which to thrive. It may be, generally, a good place to aim (at equal parenting time), but equal parenting time isn’t likely to be in the best interests of the children in a majority of cases in modern life as we know it.
The opinions expressed in this article are not necessarily the opinions of the Drendel & Jansons Law Group.
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