Here in Chicago and around the country, the realities of schooling and the COVID pandemic have shined a spotlight on some common issues in divorce — including the allocation of parental responsibilities and decision-making.
For a few weeks over the summer, parents with children enrolled in Chicago Public Schools (CPS) faced a choice of whether to allow their young students to go back to class for in-person learning during the week, or to opt for all-remote school attendance. Similarly, students enrolled in Catholic schools around Chicago must sign a waiver to resume in-person classes.
While CPS has since revised its plan and is beginning the school year with all students learning from home, many families nonetheless had to have some difficult talks over this important decision.
Having to decide between in-person and online education is just one example of how COVID has impacted co-parents here in Chicagoland. This is a difficult time for millions of people, and is forcing many divorced parents to have to think creatively in order to respond to the crisis — and address any number of underlying issues and concerns unique to their family.
This is a moment that is causing friction for many people — and has prompted a lot of consideration and discussion over matters like allocation of parenting time, parental responsibilities, and parental decision-making in a divorce.
Allocation of Parental Responsibility: What Does It Mean, and How Does It Work?
When a couple with one or more children gets divorced, it is essential to make decisions about parenting time and parental responsibilities. (Note that these are currently the terms we use in our home state of Illinois; in other states, you may see the phrase “custody” used to describe similar concepts.)
“Parenting time” refers to a period during which one parent is responsible for caring for the child, such as providing food, shelter, education, medical care, and discipline. This includes making “non-significant” or everyday decisions for the benefit of the child.
“Parental responsibilities” is a broad term, and encompasses both parenting time and “significant decision-making responsibilities with respect to a child.” This encompasses decisions about “issues of long-term importance in the life of a child,” including:
- Education (including the choice of schools and tutors)
- Health (including all decisions relating to the medical, dental, and psychological needs of the child, and all relevant treatments)
- Religion (including the child’s religious upbringing)
- Extracurricular activities (including sports, art programs, and so on)
Generally speaking, a plan for the care of minor children must be included as part of a divorce. If the couple can work together through mediation or agreement, they may present a “parenting plan” — that is, a signed, written agreement that allocates significant decision-making responsibilities, parenting time, or both. In addition to allocating significant decision-making responsibilities and parenting time, the parenting plan should set forth each parent’s right of access to the child’s medical records; provisions regarding a future change of residence; provisions requiring each parent to notify the other in case of emergencies, health care, travel plans, or other significant child-related issues; transportation and communication arrangements, and more.
If the parents cannot agree on a plan, the court will issue an allocation judgment, with the goal of assigning decision-making responsibilities “according to the child’s best interests.”
In making its determination, the court will consider a number of different factors, including the wishes of the child; the mental and physical health of all parties involved; the level of each parent’s participation in past significant decision-making; the existence of any previous parenting agreements; the willingness and ability of each parent to consider the needs of the child; the occurrence of abuse; and “any other factor that the court expressly finds to be relevant.”
In practice, this can result in any number of different arrangements. Both parents may share decision-making responsibilities on health-related matters, for example, while the parent with the bulk of the parenting time may be allocated decisions over school and extracurricular activities. Parents may agree to make all decisions jointly, or one parent may receive sole decision-making responsibility over the child.
These plans and agreements may be modified over time. For example, a court may order a restriction of parenting time if it finds that a parent engaged in any conduct “that seriously endangered the child’s mental, moral, or physical health” or impaired their “emotional development.” The court may also modify a parenting arrangement if it is found that a modification is in the child’s best interests based on “a change of circumstances that occurred after the entry of an order restricting parental responsibilities.” Parenting plans may also be revisited or amended in order to resolve issues that arise from a parent’s relocation, or if one party consistently violates the terms of the existing plan.
Addressing Co-Parenting Issues During COVID-19
Co-parenting can be complex and trying even in the best of circumstances — and the uncertainty and unpredictability of a pandemic is certainly pushing many families to their limits.
Making decisions about pandemic-related matters can be confusing, and may lead to disagreements among parents navigating into unfamiliar circumstances together.
For example, is the choice to send kids to school during COVID solely an educational decision, or is it also a health decision? What about resuming extracurricular activities, like in-person sports leagues or summer camps — many of which are continuing with safety restrictions in place?
Based on the allocation of decision-making established during a divorce, these scenarios could put parents with different levels of responsibility at odds with one another. This might merit mediation if parents cannot reach an agreement. Based on the severity of the circumstances, it may even warrant seeking a hearing in court — though it is also important to remember that this new ground for the legal system, as well, and judges may still be determining how to best handle these kinds of cases.
Some of the clearest guidelines came early in the pandemic from the Chief Judge of the Domestic Relations Division of Cook County, who entered a General Order regarding parenting time to pre-empt COVID-related issues, including a provision that:
Unless otherwise directed by further order of the Court, the parties shall continue to follow their respective parenting time schedules.
As well as the following:
…Parties are strongly encouraged to act in the best interest of their children and are strongly admonished from taking acts that would imperil the physical health of any child, including unnecessary or discretionary travel.
This order aligns with guidelines issued early in the pandemic by the American Academy of Matrimonial Lawyers (AAML) and Association of Family and Conciliation Courts (AFCC), which urge parents to be transparent about decision-making related to the virus; generous with makeup time; understanding of economic hardships; and compliant with court orders and agreements:
Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.
We Are Here to Help
These are uncharted waters — and if you are dealing with a family law or divorce matter during COVID, it may prove beneficial to work with an experienced and knowledgeable legal professional who can help you understand and address the unique variables of your situation.
Our team of experienced and compassionate advocates is still here and ready to provide skilled, efficient, and affordable legal representation to individuals and families facing life’s most challenging family transitions.
If you have any more in-depth questions about how coronavirus and its economic effects may impact your family’s legal arrangements, we would be happy to keep the conversation going about:
- maintenance (formerly spousal support)
- allocation of marital property and debt
- child support
- allocation of parental responsibility and parenting time
- updating parenting agreements
- estate planning and probate
As our community continues to grapple with the ever-changing COVID situation, our team at The Law Offices of J. Jeltes continues to work full-time, remotely. We know that matters of family law do not slow down, even in these unusual circumstances, and we are here to help however we can — so that you do not have to face these stressful times alone.
If you or your family is struggling to adjust to these difficult times and you may have a legal issue to address, please do not hesitate to give us a call or contact us online. Our support staff will continue to be able to assist you and will be receiving all calls and messages during our normal business hours, 9:00 a.m.- 5:00 p.m. We hope everyone is practicing self-care and staying safe and healthy.