At What Age Can A Child Choose Not To Visit The Non-Custodial Parent In Illinois?

Parenting children is not easy.  Parenting children is even harder when you’re not parenting in the same household as the other parent.  The shuttling back and forth of children to two different homes is hard on everyone involved. Children are by definition immature and cannot make decisions for themselves but that doesn’t mean children don’t have opinions.  How old does a child have to be before they can decide if they will visit a parent in Illinois? The Initial Parenting Plan And A Child’s Wishes Illinois visitation laws say that when determining the parenting schedule, the two parents are supposed to both submit proposed parenting plans to the courts within 120 days of the filing of the divorce or the parenting action. “All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a) Hopefully, upon perusing their respective proposed parenting plans, the parties can independently negotiate a final agreed allocation of parenting responsibilities and parenting time to be submitted to the court.  This final allocation of parenting responsibilities and parenting time will then govern where the children visit, spend the night, and with whom. The children are NOT consulted when preparing a final parenting plan in Illinois. If the parties remain disagreed after exchanging parenting plans, the parties are required to attend a mandatory mediation regarding the parenting schedule. “The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist” 750 ILCS 5/602.10(c)  If after mediation, there is an agreement, the parties can submit the mediation report to their attorneys for final preparation of the agreed allocation of parenting responsibilities and parenting time. Children are NOT allowed in mediation.  Children have no voice in the mediation. The parents can enter into the final agreement without consulting the children. If the parties still can’t agree on a parenting schedule after mediation, the Illinois courts can step in and decide what the children’s parenting schedule should be. “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a) Illinois courts will consider the child’s wishes along with a multitude of other factors. “[T]he wishes of the child, taking into account the child’s maturity and ability to […]

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Unmarried Couples and Dividing Property In Illinois

People are getting married a lot less lately….or at least getting married a lot later. It’s not uncommon for unmarried couples to not only live together but to buy homes together.  What happens when an unmarried couple buys a property and then breaks up? Does either party have a claim to the property they bought together or property they  bought individually while they were not married to each other? What are the rights of unmarried couples in Illinois? Illinois law treats property acquired by people who are married as marital property.  That is, if two people get married and then earn and keep some asset, property or money, that asset, property or money will be divided equitably between them both. If you’re not married, the Illinois statute doesn’t say anything. So the presumption is that whoever has the property in their name or possession gets to keep that property in their name or possession.  The Illinois statute treats Illinois unmarried couples and their property the same way it would treat two strangers or two close friends and their property…as completely separate non-joint parties. You’re Not Married Until You’re Married. When the Illinois statute doesn’t say something or the Illinois statute is outdated or contextually wrong, the Illinois courts can step in and make a ruling that defies the statute. But, they rarely do. One particular Illinois supreme court case underscores how Illinois is so committed to keeping a strict distinction between the married and the unmarried. Two women, Ms. Brewer and Ms. Blumenthal, lived as a married couple for years.  They clearly would have been married had it been legal to enter into a same-sex relationship. They lived together. They had children together. When civil unions finally became legal in Illinois, the two women immediately entered into a civil union.  If any unmarried couple had the right to have their property declared as “marital” and thus be divisible between the two, it was Ms. Brewer and Ms. Blumenthal. The Illinois Supreme Court was not moved by their story. “Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in the institution of marriage.” Blumenthal v. Brewer, 69 NE 3d 834 – Ill: Supreme Court 2016 So, now that you […]

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Child Custody After The Death Of A Parent In Illinois

A Judgment of Dissolution, a Marital Settlement Agreement, and an Allocation of Parenting Time and Parental Responsibilities all determine how two formerly married people (or unmarried parents) must conduct themselves in relation to each other post-divorce (or post-judgment of paternity). What happens if one of the parents dies after an Illinois divorce? What happens to all of those obligations the dead spouse entered into when the parties divorced? Who gets custody of a child after a parent dies in Illinois?  Custody Of A Child After The Death Of A Parent In Illinois If a parent dies in Illinois, the other surviving parent has the right to have complete control over the children. “There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b)(ii) If both parents are dead, the last parent to die can determine who will be the children’s guardian. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as guardian of the person or estate, or both, of an unmarried minor.” 755 ILCS 5/11-5(a-1) The designation of a child’s guardian after the death of a parent must be done in a very specific manner. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, or a guardian or a standby guardian of an unmarried minor or of a child likely to be born may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as successor guardian of the minor’s person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation may be proved by any competent evidence.” 755 ILCS 5/11-5(a-1) Section 11-3 of Illinois’ Probate Act says only certain people can be guardians. “A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the […]

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Children’s Hearsay Testimony In An Illinois Divorce Or Parentage Case

Note: this article was largely inspired by a lecture made by David Del Re at the Lake County Family Law Conference in February of 2025 which I attended. Mr. Del Re does excellent work and I endorse him and his firm for all family law matters. There’s an old adage in family law courts that “children should have a voice but not a choice”.  Children are also highly discouraged from testifying in divorce cases. Without testifying, anything a child alleged said is impermissible hearsay. So, how do children make their wishes known to the court in an Illinois divorce. Why Do Children Need To Have A Voice In An Illinois Divorce? Courts base all decisions related to children on “the child’s best interests” 750 ILCS 5/602.7(a), 750 ILCS 5/602.5(a) Kids do not get to pick which parent they will spend time with but the court can consider their wishes. “In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:…(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time” 750 ILCS 5/602.7(b)(2) Likewise, the court must also consider the child’s wishes as to which parent makes what decisions for the child. “Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making” 750 ILCS 5/602.5(d)(1) The child’s wishes have to be communicated to the court somehow. But, courts do not like putting kids in the witness box and subjecting them to cross-examination. “The court should…determine whether the best interests of the child would be served by permitting her to testify or be sheltered from testifying and being subjected to vigorous cross-examination.” Crownover v. Crownover, 337 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 1975 Without testifying, the children’s wishes are hearsay testimony. Hearsay And Children’s Testimony In An Illinois Divorce or Parentage Action “”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Ill. R. Evid. 801(a) Hearsay is not allowed […]

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Leaving Your Ex-Spouse As A Beneficiary After An Illinois Divorce

If you have ever opened up any kind of account with a financial institution, you will be asked to name a beneficiary. The beneficiary will be the person who will receive the account, if you pass away. If you are married, you will likely choose your spouse to be the beneficiary of that account. If you subsequently get divorced in Illinois, your ex-spouse’s beneficiary designation is not completely undone by an Illinois divorce. You may be awarded the entirety of an asset but your right to give away that asset remains…even to your ex-spouse. “Illinois case law pertaining to nontrust property assigned to one party after a divorce, where the ex-spouse is still named as the primary beneficiary, distinguishes two distinct types of interests. One interest is ownership interest, the ability to do with the property as one wishes. The second interest discussed is an expectancy or beneficial interest. Expectancy is defined as ‘the interest of a person who merely foresees that he might receive a future beneficence, such as the interest of an heir apparent… or of a beneficiary designated by a living insured who has a right to change the beneficiary.’ ” (Emphasis added.) Deida v. Murphy, 271 Ill. App. 3d 296, 299 (1995) (quoting In re Marriage of Weinstein, 128 Ill. App. 3d 234, 244 (1984)). If you really own something, you have the right to give it away to whomever you choose. Complete ownership of an asset means you can leave that asset to your ex-spouse through a beneficiary designation. “Because having the right to do whatever one wants with property includes the power to direct, “After I die, A shall become the owner,” there is no inconsistency between an ownership interest in one person and an expectancy interest in someone else. This power of after-death disposition is a stick in the brush pile of ownership. Being awarded property, such as an account, means gaining the ability to control who will be the new owner after one dies (and either changing one’s mind inter vivos or not changing one’s mind about the after-death beneficiary).” Mowen v. Kelly, 2025 IL App (4th) 240906 To illustrate, in one case, Robert E. Leahy owned some real estate on North Clark Street in Chicago. He put the property in a land trust, naming his wife, Margaret K. Leahy, as the contingent beneficiary in case he died. Robert and Margaret afterward […]

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When Is Curfew For Children In Illinois?

Curfew is “[a] regulation that forbids people (or certain classes of them, such as minors) from being outdoors or in vehicles at certain hours.” Black’s Law Dictionary (11th ed. 2019) Like my mother always said, “Nothing good ever happens after midnight. So, be home by then.” Illinois has a state curfew statute and numerous local municipal citations that govern curfew regulations. “Illinois curfew law properly further[s] the State’s valid interest in protecting its children.” Village of Deerfield v. Greenberg, 550 NE 2d 12 – Ill: Appellate Court, 2nd Dist. 1990 “The [Illinois curfew] statute proceeds upon the basic assumption that when a child is at home during the late night and early morning hours, [the child] is protected from physical as well as moral dangers” People v. Chambers (1976), 66 Ill.2d 36, 360 N.E.2d 55  What Is Curfew In Illinois? “A minor commits a curfew offense when he or she remains in any public place or on the premises of any establishment during curfew hours.” 720 ILCS 5/12C-60(a)(1) Only children 16 years and under are subject to Illinois’ curfew statute. “”Minor” means any person under 17 years of age” 720 ILCS 5/12C-60(d)(4) In Illinois, “Curfew hours” means:(A)Between 12:01 a.m. and 6:00 a.m. on Saturday;(B)Between 12:01 a.m. and 6:00 a.m. on Sunday; and(C)Between 11:00 p.m. on Sunday to Thursday, inclusive, and 6:00 a.m. on the following day.” 720 ILCS 5/12C-60(d)(1) Breaking curfew is not a big deal in Illinois. You can’t even go to jail for it. “A violation of this [the Illinois curfew law] is a petty offense with a fine of not less than $10 nor more than $500” 720 ILCS 5/12C-60(e) “”Petty offense” means any offense punishable by a fine of up to $1,000 and for which a sentence of imprisonment is not an authorized disposition.” 705 ILCS 135 “The Curfew Act…only authorizes a fine as a sentence” People v. BRADLEY M., 815 NE 2d 1209 – Ill: Appellate Court, 3rd Dist. 2004 Aspect Detail Definition of Minor Any person under 17 years of age Curfew Hours for Minors Saturday: 12:01 a.m. – 6:00 a.m. Sunday: 12:01 a.m. – 6:00 a.m. Sunday to Thursday: 11:00 p.m. – 6:00 a.m. the following day Penalty for Curfew Violation Fine between $10 and $500, classified as a petty offense (no imprisonment authorized)   Defenses To Curfew Violations In Illinois To be guilty of breaking curfew in Illinois you must “remain in a public […]

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What Is The Cap On Child Support In Illinois?

Whenever a celebrity’s child support amount is announced in the news, the child support always seems absurdly high. Kelly Clarkson pays her ex-husband $ 45,601 in child support. Nick Cannon pays $2.2 million dollars a year to the mothers of his nine children. Celebrities do not live in Illinois. So, celebrities are not a useful guide to what the actual upper limits of child support are in Illinois. What is the cap on child support in Illinois?  How Is Child Support Calculated In Illinois? “The court shall determine child support in each case by applying the child support guidelines” 750 ILCS 5/505(a)(2) In Illinois, child support “guidelines” are determined via an “Income Shares Method.” This method estimates what amount of money parents with their respective incomes and time with the child will spend on the child. “The Illinois Department of Healthcare and Family Services shall adopt rules establishing child support guidelines which include worksheets to aid in the calculation of the child support obligations and a schedule of basic child support obligations that reflects the percentage of combined net income that parents living in the same household in this State ordinarily spend on their child.” 750 ILCS 5/505(a)(1) With both parents’ net incomes and the income shares schedule, child support can be calculated. “The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and (D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(A)(1.5) What Is The Maximum Child Support That Can Be Paid In Illinois ***UPDATE: The Income Shares Tables Changed in February 2023. I will update this article soon*** On the current 2022 Income Shares Schedule Based On Net Income, there is a maximum net income for both parties available: $ 30,024.99. That is $ 360,299.88 a year as the maximum net income for both parents to determine child support based on the income shares schedule. Anything beyond $ 30,024.99 a month, the income shares schedule does NOT provide a corresponding child support amount. That maximum income is a net amount after taxes. What is the gross […]

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Does Bad Parenting Qualify As Abuse In An Illinois Divorce?

Some parents do really dumb things with their kids. It is possible that the dumb activity might be so dangerous or ill-conceived that the reckless activity may constitute abuse for the purpose of getting an order of protection against that parent. “In any proceeding to obtain an order of protection, the central inquiry is whether the petitioner has been abused.” Best v. Best, 223 Ill. 2d 342, 348 (2006) If abuse is found an order of protection shall issue. “If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214 The child need not file the petition for an order of protection to get protection from a “bad parent.” Literally, anyone can file a petition for an order of protection for a minor child. “A petition for an order of protection may be filed only…household member or by any person on behalf of a minor child” 750 ILCS 60/201(a) Determining whether abuse has occurred is not a high standard. “The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a) When the “standard of proof is only a preponderance of the evidence, [a Petitioner] must prove that it is more probably true than not true that [Respondent] was guilty of such acts of [abuse].” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992 Abuse is defined by the Illinois Domestic Violence Act. The statute outlines 5 types of abuse: 1) physical abuse, 2) harassment, 3) intimidation of a dependent, 4) interference with personal liberty or 5) willfull deprivation. The petition for an order of protection must specify which kind of abuse is being alleged. “ ‘Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1) (emphasis added) Whatever kind of abuse is being alleged, it will not be deemed actionable if the abuse is “reasonable direction of a minor child by a parent.” Bad parenting that constitutes abuse of the child is invariably physical abuse under the statutory definition. “Physical abuse” includes sexual abuse and means any of the following: (i) knowing or reckless use of physical force, confinement […]

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