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Divorce and the Allocation of Parenting Time

Divorce and the Allocation of Parenting Time

One of the most sensitive issues in any Illinois divorce is deciding how to best share child custody–or as current state law refers to it, the “allocation of parenting time and responsibility.” In the best-case scenario, the divorcing parents will reach a voluntary, good faith agreement on how to best allocate time and responsibility. The parents can then submit a parenting plan to the court, which upon the court’s approval becomes a legally binding joint parenting order.

Federal Court Refuses to Intervene in Illinois State Court Decision

As with any legal agreement, it is critical for both parents to obtain independent legal advice from qualified Illinois divorce and family law attorneys before signing a parenting plan. Never assume that if you are later dissatisfied with the terms of the parenting plan that you will be able to simply amend it after-the-fact. If you cannot alter the agreement, showing up in court and complaining you were treated unfairly is unlikely to persuade a judge to change things in your favor.

For example, in a July 2019 decision, Weinhaus v. Cohen, the U.S. Seventh Circuit Court of Appeals in Chicago rejected a father’s attempt to modify a parenting plan via the federal courts. The father and mother have five children together. In 2012, the couple filed for divorce in Cook County. At the time, they agreed to a parenting plan.

As relevant here, the parents’ agreement–later incorporated into a state-court order–said the mother would be the “primary residential parent” and that all five children would continue to reside with her in Illinois. The father, who by then was living in Missouri, was allowed to “conduct his parenting time outside of Illinois on specified weekends and school breaks.”

A few years later, the parents agreed to a modification of the parenting plan, which was again approved by the state court. The modification stated that the father’s parenting time “shall” be exercised outside of Illinois. According to the father, his ex-wife and her family took that to literally mean he could not spend time with his children inside the State of Illinois.

This prompted the father to sue his ex-wife and former in-laws in federal court. The father argued the modified order violated his “constitutional right to travel” and due process. A federal judge dismissed the father’s case for lack of jurisdiction. The Seventh Circuit upheld the trial judge, explaining that federal courts typically cannot review state-court orders absent express authorization from Congress (or a decision from the U.S. Supreme Court).

You are Not Alone: Get Help from an Illinois Divorce and Child Custody Lawyer Today

The father, in this case, apparently represented himself without the assistance of an attorney. Do not make this same mistake if you find yourself involved in any legal dispute affecting the custody of your children. A qualified Illinois divorce attorney can help you in negotiating a parenting plan with your estranged spouse, and where necessary seeking appropriate modifications through proper legal channels. Contact SAM LAW OFFICE LLC to schedule a free consultation with a family law attorney today.

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