House Bill 4113: Will “Splitting The Baby” Ensure Equality Between Separated Parents And If So, At What Cost?
By Elizabeth Demonte Cervone and Emily C. Bitzer
If passed, HB 4113 would create a presumption that it is in a minor child’s best interests for equal parenting time to be awarded to each parent. Going a considerable step further, it also requires a parent seeking to overcome that presumption to prove by clear and convincing evidence that the other parent’s exercise of 50% of the parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.5 Currently, the IMDMA requires a showing only by a preponderance of the evidence that there exists a serious endangerment warranting a restriction of one parent’s parenting time.6 As such, HB 4113 would create a significantly higher legal burden to overcome for parents concerned about a child’s safety.7
Historically, children of divorced or separated parents were placed in the primary residential custody of their mothers. However, evolving societal norms have increasingly lent credence to the idea that mothers are not necessarily the better or proper custodians for minor children. The rise of feminism in the 1960s and 1970s challenged the traditional family roles of the mother as caretaker and the father as breadwinner.8 Fathers have become more involved in the lives of their children since that time and domestic relations courts have trended away from the traditional default of every-other-weekend parenting schedules. The proportion of time married fathers spent in direct child care relative to mothers increased from 24% to 55% between 1965 and 1998.9 Between the 1970s and the 2000s, the percentage of uninvolved fathers decreased from 35% to 22%, and the percentage of involved fathers (fathers who saw their children weekly and also paid child support) increased from 8% to 26%.10 Young adults with divorced parents who have had regular contact with their fathers during childhood feel closer to and less abandoned by their fathers, less angry toward their mothers, and more favorable about their family generally during the post-divorce years.11 HB 4113 essentially seeks to codify this social trend by establishing a legal presumption of 50/50 parenting time between mothers and fathers.
While equally fit parents should be treated equally, in a dispute over allocation of parental responsibilities, is a presumption of 50/50 parenting time the optimal way to achieve equality and does it put equality above all else to the detriment of children? The Illinois legislature must consider whether passing HB 4113 is in the best interests of the children as it considers a presumption of 50/50 parenting time. HB 4113 may place parents’ desires for legally imposed ‘equality’ above the best interests of the child.12 In addition, HB 4113 may create an impossible evidentiary hurdle for parents legitimately concerned about a child’s safety but unable to provide the type or quantity of evidence sufficient to meet the “clear and convincing” standard.
Equal Protection Concerns
It appears that the primary motivation behind HB 4113 is to ensure that each parent starts on equal footing as it relates to parenting time and guarantee that mothers are not being given preferential treatment simply because they are mothers. However, mothers and fathers do start on equal footing in parenting time disputes under the law, and Illinois courts have rejected the idea that mothers should be favored in parenting time disputes and declared a legal presumption favoring mothers, known as the “tender years” doctrine, to be in violation of the equal protection clause of the Illinois Constitution. The tender years doctrine provided that the mother is the proper custodian for a child “of tender years,” generally five years old or younger.13
During the 1970s and early 1980s, Illinois appellate courts began to repudiate the tender years presumption.14 A case representative of this movement is In re Custody of Switalla. In Switalla, the lower court had relied upon the tender years’ presumption in awarding custody of the children to the mother.15 While ultimately affirming the circuit court, the appellate court acknowledged that the tender years’ presumption is improper because it places the burden on only the father to prove the mother unfit and does not simultaneously place a burden on the mother to prove the father unfit.16 The appellate court anchored its analysis to the Illinois Constitution, explicitly stating that the tender years’ presumption denied fathers equal protection under the law because of their gender.17
The fundamental guiding principle of disputes involving minor children is now the best interests of the child.18 The precursor to the IMDMA, the Uniform Marriage and Divorce Act, required courts to look at the best interests of the minor child in resolving a custody dispute.19 When the IMDMA was enacted, the best interests standard was laid out in detail, setting forth qualitative factors a court must consider in making such a determination.20 The IMDMA provides safeguards to ensure that children’s best interests remain central, including the ability for the court to appoint a guardian ad litem, child’s representative, or attorney for the child21 as well as in-chambers interviews of children and professional evaluations.22 A best-interests determination is heavily fact dependent and “cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.”23 Each child and each parent have unique physical, emotional, and psychological needs. Instituting a bright-line rule presuming that 50/50 parenting time is in the best interests of every child in the state of Illinois may be in direct contravention to well-settled case law, which explicitly provides that the determination of best interests must be made on a case by case basis.24
The Illinois legislature must therefore consider whether HB 4113 denies “equal protection” under the law to children who are the objects of disputes over allocation of parental responsibilities. In instituting an across-the-board presumption of a 50/50 parenting schedule, HB 4113 completely undermines a fundamental principle of custody law: the best interests of the child. It is naïve to believe that every parent in domestic relations court is motivated purely by their child’s best interests. HB 4113 ignores the reality that some litigants are driven by money and self-interest, and HB 4113 may have the unintended consequence of rewarding parents who place their own objectives over the best interests of their child. It also wholly ignores the geographical hurdles shared parenting time can create (e.g. commuting long distances to school every day, simply because each parent has a legal entitlement to 50% of the parenting time and refusing to cede that entitlement). As judges, lawyers and parents throughout the state are well aware, a 50/50 parenting schedule is not in the best interests of every single child with separated parents.
Heightened Evidentiary Burden Concerns
HB 4113 provides that a schedule granting either parent less than 50% of parenting time is tantamount to a parenting-time restriction. Thus, parents seeking the majority of parenting time in a dispute will have to prove serious endangerment to a child before a court could award such a schedule.25 Serious endangerment is a very high standard and requires compelling evidence “that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development.”26 Raising the standard of proof could compromise children’s safety because being unable to prove serious endangerment to a child by clear and convincing evidence in a court of law does not mean that the child is not in danger.
Many single parents are victims of domestic violence. In a contested parenting time scenario, HB 4113 would require a spouse leaving an abusive situation to meet the incredibly high burden of clear and convincing evidence to prevent the child(ren) from residing with an abusive parent 50% of the time. Many victims of domestic violence do not obtain police reports and would have no evidence to present at a hearing other than his or her own testimony. Some have limited financial resources and may have no choice but to represent themselves pro se. To require single-parent primary caregivers, whose children’s best interests would likely be best served by their having the majority of parenting time, to overcome this exceedingly high legal standard is patently unjust.
While HB 4113 may benefit well-educated and affluent parents,27 domestic relations litigants in Illinois come from varied social, cultural, economic and educational backgrounds. Thousands of single parents, fathers and mothers alike, have raised their children for years while the other parent was absent, abusing drugs or alcohol, or simply uninterested in playing a role in the children’s lives. There is no one-size-fits-all approach to determining what type of parenting schedule is best for a child. Illinois law expressly provides that the best interests determination is fact-specific and depends upon the unique dynamics of each family.28 In a society of diverse cultures, socio-economic groups, races, religions, and professions, it is both unjust and uninformed to consider anything other than a fact-specific analysis of the best interests of a child. Rather than invoking King Solomon’s wisdom and “splitting the baby,” we must continue to recognize that each family is different and to consider the well-being of each child an absolute priority.
1. 1 Kings 3:16-28.
5. H.B. 4113, 100th Gen. Assemb., Reg. Sess. (Ill. 2017) (proposed addition to 750 Ill. Comp. Stat. 5/102(7)).
6. 750 Ill. Comp. Stat. 5/603.10.
7. H.B. 4113, supra note 5 (proposed amendment to 750 Ill. Comp. Stat. 5/602.7(b)).
8. Paul R. Amato, Catherine E. Meyers, & Robert E. Emery, Changes in Nonresident Father-Child Contact from 1976 to 2002, 58 Family Relations 41 (Feb. 2009) (“Amato”).
10. Id. at 49.
11. Id. at 43.
12. HB 4113 was drafted and proposed by a fathers’ rights organization. Illinois Fathers for Equality, Our Shared Parenting Bill, http://ilffe.ilffe.org/index.php/our-shared-parenting-bill-2 (last visited July 16, 2018).
13. Miner v. Miner, 11 Ill. 43, 49 1849 WL 4253 (1849) (“[I]f no objection to the mother is shown to exist, even when the father is without blame, merely because of his inability to bestow upon it that tender care which nature requires, and which is the peculiar province of the mother to supply.”).
14. Drake v. Homimer, 35 Ill. App. 3d 529, 341 N.E.2d 399 (4th Dist. 1976); In re Marriage of Macaluso, 110 Ill. App. 3d 838, 443 N.E.2d 1 (2d Dist. 1982); In re Marriage of Hanson, 112 Ill. App. 3d 564, 445 N.E.2d 912 (5th Dist. 1983); In re Marriage of Benevento, 118 Ill. App. 3d 16, 454 N.E.2d 766 (1st Dist. 1989).
15. In re Custody of Switalla, 87 Ill. App. 3d 168, 169, 408 N.E.2d 1139 (3d Dist. 1980).
16. Id. at 175.
17. Id. at 173.
18. Underlying this principle is each child’s basic human rights. See, e.g., United Nations Office of the High Commissioner on Human Rights, Convention on the Rights of the Child (Sept. 2, 1990), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx (providing that in all actions concerning children, whether undertaken by courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be the primary consideration).
19. See National Conference of Commissioners on Uniform State Laws, Uniform Marriage & Divorce Act, § 402 (1973) available at http://www.uniformlaws.org/shared/docs/Marriage%20and%20Divorce%20Act/UMDA%201973.pdf.
20. 750 Ill. Comp. Stat. 5/602 (repealed by P.A. 99-90, eff. Jan. 1, 2016).
21. 750 Ill. Comp. Stat. 5/506.
22. 750 Ill. Comp. Stat. 6/604.10.
23. In re Marriage of Eckert, 119 Ill.2d 316, 326, 518 N.E.2d 1041, 1045 (1988).
24. DeBilio, 337 Ill. App. 3d at 618; Eckert, 119 Ill.2d at 326.
25. H.B. 4113, supra note 5 (proposed addition 750 Ill. Comp. Stat. 5/602.7(a)).
26. 750 Ill. Comp. Stat. 5/603.10.
27. Amato, supra at 44 (well-educated parents are more likely than less educated parents to aspire to cultural ideals of egalitarianism and shared parenting).
28. Eckert, 119 Ill.2d at 326.
Elizabeth (Lisa) Demonte Cervone received her Juris Doctor from Loyola University Chicago in 2011, and her undergraduate degree from DePaul University in 2004. She practices exclusively in family law at Griffin McCarthy & Rice LLP. Elizabeth is a 2017 graduate of the National Family Law Trial Institute in Houston, Texas.
Emily C. Bitzer received her Juris Doctor from DePaul University College of Law in 2016 and her undergraduate degree from the University of Illinois at Urbana-Champaign in 2013. She practices exclusively in family law at Griffin McCarthy & Rice LLP.