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?
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