Tuesday, November 22, 2016

The need for a policy to deal with custody disputes before the family court makes its determination

This paper describes an actual situation the student was aware of. The student discovered that the state can take too long to make a custody determination in cases where the parents are disagreeing about custody. 

What About the Children?

            A marriage, by all accounts, appears on the surface to be fine, void of any obvious problems, except for the typical bickering occasionally observed. Two young children, ages six and three, are a product of this marriage and live relatively happy lives. A weak attachment between the mother and six year-old daughter has been apparent for many years, but nothing significant enough to alert authorities. One day, the mother decides she’s had enough of the marriage— and children apparently—and leaves her husband for other men, leaving the children with their father. Barely able to process what just took place, the father does his best to keep the children’s lives as normal as possible. A week or so later the mother decides she actually wants only their son, not their daughter, and believes since she’s the mother, is entitled to whatever she wishes. Homeless and flitting from place to place, the mother realizes she cannot keep her son under these conditions, and gives him back to the father.  A short time passes and the mother is able to secure a small one bedroom apartment. Now she’s decided she actually wants both kids since she has a place of her own and new live-in boyfriend to help with childcare duties. The mother picks up her kids from school one day and over the course of eight days, refuses to let the father take them, only allowing him to visit for brief periods during this time. Police won’t intervene as this is considered a “civil matter” and needs to be handled through the court. While in the mother’s care for eight days, the six-year old was not bathed and claimed she had chips each morning for breakfast. No physical abuse was apparent, but the psychological damage is nonetheless taking place. The older child isn’t getting her school work done while with her mother, and both children were forced to call the new boyfriend “Daddy,” and both children often appeared tired. Discipline consisted of yelling at the children.  The children never asked to be put in this position, and all the father wants to do is keep them in their natural home in their own rooms on their accustomed routine. Each day is an unknown since both parents have equal rights until the court states otherwise, and as a result, the children are catapulted into this custody battle—not knowing whom they will be with the next day—experiencing vastly different situations between time around their mother and father. Unless the children have been physically injured—psychological damage is not taken into consideration here—the children have to be subjected to this unpredictable lifestyle until a court date, which is typically at least one month out from the time one parent files a motion for custody, determines custody arrangements.
            Illinois law states that unless a crime has been committed, both parents have equal rights to their children until the court makes a custody ruling. Is this fair to the millions of children living in Illinois who, at any time could find themselves in this situation? After the matter goes to court, it can be handled appropriately, and hopefully the judge will accurately assert what parent provides the children with the best environment conducive to their physical and emotional health.
            Is it fair that children should be subjected to an inconsistent routine, being passed from place to place because there is nothing in the courts to immediately enforce anything different? According to a census during 2010-2011, 33,789 divorces occurred in Illinois, and in 2013 there were 29,331 divorces and annulments in the state, according to the Illinois Department of Public Health. The percentage of these divorces in which children are involved is not reported, but it’s relatively safe to assume a good percentage had children.  The state of Washington does keep track of what percentage of the divorces in that state involve children, and the number has consistently been close to 50%, and there is no reason to assume that Illinois would be radically different from Washington, so a guess of about 15,000 divorces each year in Illinois in which children are involved seems reasonable. In most of these divorces the adults amicably make agreements about custody, and there are no custody disputes or battles to win sole custody.  However, in an unknown fraction of divorces with children, the parents do not agree about custody, and they use lawyers, psychologists, and others to fight for the right to have time with their children, or the right to have sole custody and control the access of the other parent. Even if custody battles only occur in 5% of divorces involving children, that would still be approximately 750 divorces per year in this state, and presumably in a large fraction of these divorces there could be conflict about who should have custody of the children while waiting for the family court to make its determination.
            Understandably, when children are whipped around from house to house, this imposes significant stress on them. Unfortunately, it’s not easy to obtain an emergency temporary custody order. According to Illinois law, in order to obtain an emergency hearing, a petition must first be filed with the court indicating why it constitutes as an “emergency.” Courts typically do not view visitation disputes as “emergencies” and usually the only situations that will be heard are if the child(s) welfare is at risk: as in cases of child abuse/neglect, presence of a sex offender in the home, or substance abuse by the parent, or a parent’s refusal to allow the other parent to see the child(ren).
            Effective July 1, 2004, the Illinois Supreme Court adopted Rule 306A, which states “except for good cause shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal.” The appeal is regarding an emergency custody hearing. After the completion of trial or hearing, the allocation of parental responsibilities (used to be called ‘custody’) proceedings will be determined by a judge no later than 60 days. From the date the first petition or complaint is filed regarding parental responsibilities, the court is obligated to resolve the matter within 18 months. Additionally, the Supreme Court and legislature have exhaustively stressed the need for allocation of parental responsibilities to be handled expediently; focusing on the best interest of the child. In the Juvenile Court Act of 1987 (705 ILCS 405/2-14(a)), the law states the importance of “seeking permanency for children in a ‘just and speedy’ manner.” Rule 901 part (a) illustrates how imperative allocation of parental responsibilities be handled “expeditiously.”
            The court cost involved with seeking sole parental responsibilities is shockingly expensive. Typically in a case where one or both parties cannot afford legal counsel, one will be appointed for them, but if one has the means to hire an attorney, costs can range anywhere from a few thousand dollars to tens of thousands and more, depending on the complexity of the case.
            These policies do not appear to be effective as they stand today. Many children are caught in the middle of angry, vicious, tension-filled informal custody battles until the case is finally heard before a judge. There are probably hundreds of cases like this each year in Illinois. While the Supreme Court has issued policies on this matter, these cases do not appear to be handled “expeditiously.” Perhaps, in the courts’ eyes, a case being handled expediently is within six months; but severe psychological damage could have and quite possibly will have already been inflicted on a child within that time frame. What more can be done to protect children caught in the middle of big people problems? Who is their voice? What more can be done to ensure that really…children’s best interest is really the primal concern in domestic situations?


No comments: