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BRIEF IN SUPPORT OF MAXIMUM POSSIBLE INVOLVEMENT/VISITATION
The Illinois Marriage and Dissolution of Marriage Act sets parental involvement standards as to the award or modification of custody and visitation.
The 1985 amendments to the IMDMA and the Illinois Supreme Court's Eckert decision, In re Marriage of Eckert (1988), 119 ILL. 2d 316 at 327, represented a changed approach to custody and visitation determination in Illinois. Prior practices of awarding custody, visitation, supervised visitation and removal of children from the state or area should be re-evaluated in light of these amendments and subsequent case law.
The amendments included among the purposes of the IMDMA securing the maximum involvement and cooperation of both parents in the child’s welfare. See: 750 ILCS 5/102 (7):
(7) secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being during and after litigation.
The amendments further re-defined best interests of the child to include a presumption for the maximum involvement and cooperation of both parents in the child’s ongoing welfare.
Best Interest Defined:
(c) The Court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. 750 ILCS 5/602(8)(c).
The Statute was later amended to add a new test for custody, the ability of the custodial parent to foster a relationship between the child and the non custodial parent. See: 750 ILCS 5/602(a)(8).
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. 750 ILCS 5/602(a)(8)
Eventually in January 1994 denial of Court Ordered visitation was deemed a criminal offense. See: 720 ILCS 5/10-5.5(b).
Every person who, in violation of the visitation provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference. 720 ILCS 5/10-5.5(b).
The above changes were precipitated by studies showing the child’s need for significant and continuing contact with both parents after divorce. See, e.g.,
Wallerstein & Kelly, Surviving the Breakup, (1980) (study points to the undesirability of routinely designating one parent as "psychological parent" and of lodging sole legal and physical custody in that one parent).
There were also doubts raised about the constitutionality of presumptively denying custody to one of two admittedly fit parents: See, King vs. Vancil, 34 Ill. App. 3d 831, 341, N.E. 2d 65 (5th Dist. 1975).
Recent case law declares a duty of the custodial parent to foster the relationship between the non-custodial parent or face a change of custody.
The trial court should enforce this obligation by explicitly telling the custodial parent about it and further informing the custodial parent that if he or she is unwilling or unable to meet it, then the court stands fully prepared to change the custody order and grant custody of the children to the non-custodial parent to see if that parent could do a better job of meeting this obligation. In re Dobey 629 N E 2d 812 (Feb. 1994)
In this case the mother seeks to lower the amount of visitation she already agreed to in negotiations and which was entered as a court order. This alone evidences her unwillingness to foster the relationship between the father and his children, and puts into question her ability to serve as a custodial parent under the above Dobey standard.........
THE COMPLETE ,RECENTLY UPDATED, REMAINDER OF THIS BRIEF (SEVERAL PAGES) PLUS THE TACTICS AND DOCUMENTS TO USE WITH THE COMPLETE BRIEF FOR MAXIMUM EFFECTIVENESS, IS IN THE:
WHICH IS PART OF THE CUSTODY / DIVORCE/CHILD SUPPORT KIT SPECIAL OFFER