All over the U.S. fathers and mothers have come together to push equal parenting bills in an effort to get the courts out of their lives and to stop the courts from interfering in their children’s lives.
Jesse West, Sr, Founder of “Dads Can Too,” and Ryan Allison, Member of Illinois Fathers for Equality, have come together on HB 4113, an equal shared parenting bill, sponsored by LaShawn K. Ford. This proposed bill hopes that they can shift the burden off of the fit parent from proving why they should have equal parenting time to the other parent to prove why they should not, as reported in the Illinois Capitol News.
This bill will add the presumption that it is in the children’s best interest for equal time with both parents and that “the court shall not place any restrictions on parenting time unless it finds by clear and convincing evidence (instead of a preponderance of the evidence) that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” This is the right direction to move these laws and I support the passage of this bill.
Chad Loudermilk, president and founder of Illinois Fathers for Equality, wrote the bill. Illinois Fathers for Eqaulity will be re-submitting the bill in January 2018. This bill was introduced for the first time on October 22 and had 9 sponsors within a month, with more legislators saying they are willing to sponsor. It just wasn’t submitted on time to get through this year.
Let’s Talk About the Illinois Code.
The current Illinois Marriage and Dissolution of Marriage Act right now does not have any assurance of joint custody in it. In fact, in your current code, a judge isn’t even required to allocate parental responsibilities (which includes parenting time) to each parent. The proposed bill will require the default to be equal.
Let’s Talk About the Language in the Marriage and Dissolution Codes (Family Codes).
The language in parenting bills is extremely important. One word could mean you and your child receive the maximum protection or no protection at all. When it comes to the most precious person in your life, you cannot take any chances with this. So we review some of the language in this bill to help you with your efforts to change the laws in your state.There is nothing wrong with the language that these parents are proposing in this bill. It’s the language that is already in the law that they are amending that could continue to pose the problem. It’s how that language can be used to still prevent parents from getting equal time with their child, yep even fit parents, even after this bill is passed.
We have noticed recently that the language in the bills throughout the United States has been getting much, much better. We have been teaching parents and organizations in the movement words that have significant effect on parental rights and children’s rights like “clear and convincing evidence” and “least restrictive” and the nuances to look for when amending laws, and this is having success and impact. You can find this language in our book, “NOT in The Child’s Best Interest” with explanations on why this language is important. This book also teaches that parents are entitled to the presumption of equal parenting.
Since the publication of the book, there has been an increase in the number of parents successfully getting sponsors of bills with equal parenting in them. And recently, there has been an increase in the number of bills getting sponsored with the constitutional language in it of “clear and convincing” and “least restrictive” measures.
There is more to your rights however, if you have read the book you probably know. Leaving parts in the law that tell the judge to “investigate” the parents in order to determine the “allocation” of these rights is a big, big problem. This just invites the judge to invade your privacy and to judge you for legal decisions that otherwise you would not face legal scrutiny over. Unfortunately, the state presumes that it can treat you differently when you are divorced or never been married, and all of a sudden every parenting practice and decision you have made regarding your child comes under scrutiny. This can get very expensive very quickly. The courts charge the parents with these expenses. The Illinois code isn’t any different. It has sections in it where guardians ad litem, experts, and other child investigators can be appointed and the costs allocated to the parents. We have seen judges impose these expenses most often when a parent is insisting on equal time with their child and the other parent is adamant against it. It can be used to run the parents out of money so that they cannot fight any longer and will get stuck with whatever the judge wants to do.
The current Illinois code still requires the judge to apply best interest factors when making the determination of the allocation of parenting time. A step that could be taken in an effort to prevent this would be to add to 602.10 under Sec. (d) should remove “The court, on its own motion, may conduct an evidentiary hearing to determine whether the parenting plan is in the child’s best interests.” You have to remove these loopholes from the court or they will use them to obviate the rights you are trying to protect.
Why Isn’t Clear and Convincing and Least Restrictive Enough?
While the Illinois bill does a good job of putting some limits on the judge’s broad best interest discretion, will that be enough? .
“Clear and convincing” and “least restrictive” do come from constitutional law. The level of protection and the procedures applied to your case are based on what the constitutional law has declared is required for those rights. The issue has been that the courts start off with the wrong presumptions, and these wrong presumptions are that somehow your rights dissolved with the dissolution of the relationship with the other parent.
So the addition of “clear and convincing” and “least restrictive” measures will only go so far in the courts. It is needed and it is necessary, but we do need to help you understand that the benefit will be limited because of the loopholes still left in the existing Illinois law. We are using the Illinois Marriage and Dissolution Act as the example.
The judge is still authorized to invade the private and legal decisions that the parents make regarding their child. There is nothing in the new bill that will limit this to any significance. The Illinois law already has the provisions in there that the judge is not supposed to limit a parent unless they are endangering the child, yet it is still happening every day, multiple times a day, all throughout Illinois. Kash Jackson can attest to this as he had his time limited to supervised visits because of his political activities.The judge can still use your beliefs against you and impose his/her own beliefs and opinion regarding what behaviors, values, morals, and beliefs the parents have and whether or not the judge believes those are harmful, not whether they are harmful to the standard set by constitutional standards. So you and your child are still subject to a sole government official’s opinion and your state’s public policy on what they believe is favorable and not favorable in a parent, not what is legal or illegal.
The issue that all parents continue to run into in all of the states are that they continue to believe they can “award”, “grant”, or “allocate” what is already yours and they are still leaving the best interest determination up to the judge. While this bill adds the presumption that it is in the best interest of the child to have equal time with each parent, making you think that this makes it harder for the judge to overcome ordering less than equal, all of the same presumptions regarding best interest and the factors in determining the best interests of the child remain the same, still allowing the judge to continue to impose his/her own personal beliefs/values/biases on you and your child, and to use those to limit your time. it is not unusual for a judge to decide that you having different beliefs than the judge or the other parent endangers the child. (Using the words “allocating” and “grant” and authorizing the judge to perform investigations into your private life – is always an indicator that your laws could be providing unconstitutional discretion to your judge):
Section 602.7 ” In determining the child’s best interests for purposes of
14 allocating parenting time, the court shall consider all
15 relevant factors, including, without limitation, the
16 following: ”
Walk through factors (1) through (17) in this section and see how well you identify your own biases regarding these factors and see if you can figure out how the judge could continue to limit your time with your child under each of these factors unconstitutionally. I’ll start you off with doing number (1) for you. Number 1 says the factor to consider is “the wishes of each parent seeking parenting time.” Will providing “clear and convincing” evidence help you argue against the judge deciding that restrictions are necessary here because the judge decides that your wishes are more about you and not your child?
The restriction language about judges not limiting a parent’s time with their child . . ., unless it finds . . . evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health” has been in the law and is not new to this bill, and that has not worked to prevent the judges from restricting parents based on their own personal beliefs and biases. Changing the standard of proof from preponderance here to clear and convincing does not stop the judge from continuing to apply their own opinions on these. More needs to be done.
As mentioned earlier, a judge used Kash Jackson’s political beliefs and activity to put him on supervised visitation and continues to prevent Kash from exercising equal time with his children on nothing more than the judge’s personal beliefs. Kash has never been shown to endanger his children, but apparently the judge has decided that his beliefs that he should have equal parenting do.
Having a presumption of equal parenting is necessary, but it will not prevent judges from requiring parents to pay for investigations and having extensive evidentiary hearings and force them to continue to beg the judge to not take away the presumption. While the bill intends to shift the burden onto the parent trying to take away the equal time, it does not shift the cost of this burden. The burden of those costs are left in the law as up to the judge to allocate who pays for those, and in our experience the judges have made each parent pay equally for these studies and court-appointed child attorneys and so-called experts, as you will see in Sec. 8 below.
At some point these sections of the laws and others will also need to be changed if you want to receive the full benefit of protection from your rights and to receive the full benefit from the efforts of the parents and legislators passing these bills; or else the judges will continue to find ways to wiggle around the equal parenting intention of these bills.
Is This Happening in States that Have Equal Parenting?
We already see it happening in states that claim to have equal parenting. By leaving out the fact that the judge needs to follow the constitution before applying the factors, the equal parenting intentions are not being realized.
Let’s say that a judge is presented with a parent who doesn’t live close by the other parent, what’s to stop the judge from using that to strip one parent of their equal time? In fact, it is one of the factors listed in the Illinois code, factor (9).
Or let’s say that a parent brings clear and convincing evidence that the two parents values differ greatly and one parent has beliefs the judge doesn’t agree with, then the judge can just use the label that he believes that this is harmful to the child’s moral upbringing and cut a parent down to a visitor. Without the constitutional protections, the “clear and convincing” requirement and the requirement that the evidence show that it would “endanger the child’s . . . mental, moral, or emotional health” is still left up to just who has more money to bring in the most experts to say how horrible your beliefs or parenting decisions are regardless of whether they are legal or not.” The “clear and convincing” and the no restrictions unless it is shown to endanger the child, won’t necessarily have the result the authors and sponsor of the bill might want.
What Else Needs to Be Done?
Some simple additional steps that could help these bills would be to add some additional qualifiers and removing wrong presumptions. By adding a qualifier for what constitutes endangerment to the child would help prevent the judge from applying a different standard to divorcing and separated parents from married parents. It must be a qualifier that applies to all parents married or not. Add that the court should be using the same standards that it applies to married parents. You could use your state’s current child protection statutes that CPS is bound by, If that chapter or series of statutes is not strong enough and does not comport with constitutional limitations, then use some of the SCOTUS case language regarding what constitutes endangerment of the child’s health and welfare. You can find some examples in our book on this as well. If you let your code off the hook on these, you will be allowing the judges to continue to implement their own personal beliefs and use those to interfere with each parent’s freedom to choose how they want to raise their child.
How do I know the wrong presumptions are still in the law?
An example of how these presumptions hide, using the Illinois current laws, you can see these indicated by words like “allocation” and “allocating” and “grant.” Where the bill states:
14 (c) In allocating parenting time, the court shall not
15 consider conduct of a parent that does not affect that parent’s
16 relationship to the child.
I used this example because I do like that this section restricts the judge from considering any conduct that does not directly affect the parent-child relationship, so it would be easy to miss the presumption error here. However, as mentioned earlier, the presumption that the judge is “allocating” rights means that the judge is being let off the hook from having to apply constitutional protections. How is this so you ask? This is a sneaky way of presuming that you have already lost these rights somehow and now you must qualify to get them back. So when the judge uses his/her discretion to limit your rights and time with your child with language in the code like this, it is just about impossible to argue that they violated your right, when the code already presumed your right away. This also sets you up for failure in an appeal if you want to argue your constitutional rights were violated. This means that if they presume that somewhere along the line your rights were removed or you gave them up to the judge to redistribute them, then you will have difficulty challenging this presumption on appeal without evidence somewhere on the record that you did not. And parents have said that it is practically impossible to find an attorney who will even raise the issue of parental rights in any of these courts. Perhaps one of the reasons is that these presumptions are in there and create a very big hurdle. The attorney would have to argue against these presumptions and I don’t know of any family court that is going to go for that. The attorney will most likely be told that this is a legislative function and not for the court to address, and will be denied. Most parents going through this, don’t want to chance upsetting their judge and the only path from the denial is to challenge the judge in the appellate court. Most parents are advised against this since the judge will be determining their case and can punish them.
Basically, you will not be able to raise your constitutional protections on appeal to help you get that judge overturned. You do have a little more to help you hold the judge to needing more evidence than just a “scintilla” which is what they use out here in Texas, if they restrict you from equal if this bill gets passed in Illinois, but it just won’t be enough to stop the courts from bankrupting parents trying to get this equal time, and will not be enough to overturn a judge who imposes their idea of what is best for your child on you. The judges will still be able to defend their unequal orders for the most part.
How the Courts Bankrupt Parents
Which brings me to the next subject, appointing Guardians ad litem, Amicus, opinion witnesses or whatever else you want to call the people the court appoints to determine the best interest of the child. This law does not have any restrictions on the court imposing expenses and appointing these burdens on fit parents that I see. In fact, current Illinois law gives the judge carte blanche to appoint and to allocate your money as the judge chooses! The bill being proposed does not change any of this. Keep in mind that the political process is very picky and it is very, very difficult to get the states to change anything in their family code that provides parents with protections from the court’s exercise of power. So just the fact that you have a proposed bill that is willing to start guiding the judges towards stronger protections for children and parents is a great, great thing. So let’s look at this issue with regard to the court invading your privacy and taking your money to do it so you can understand what to do about it. Here is the part of the Illinois law that authorizes the judge to take control of your wallet, your money, and to use it how the judge sees fit.
13 (8) make reasonable provision for support during and
14 after an underlying dissolution of marriage, legal
15 separation, parentage, or parental responsibility
16 allocation action, including provision for timely advances
17 of interim fees and costs to all attorneys, experts, and
18 opinion witnesses including guardians ad litem and
19 children’s representatives,
Your courts will continue to use guardians ad litem, other opinion witnesses, children representatives, and so-called experts to justify imposing more costs and burdens on parents in order to provide the court with the clear and convincing evidence regarding the factors for determining the best interest and for overcoming the presumption of equal time being in the child’s best interest.
Should I Vote For This Bill?
YES. This bill does not limit the judge from applying his/her own biases and opinions to overcome the best interest presumption of equal time, but it does create a presumption that the judge should start from equal. Right now, you don’t have even that. The other thing this bill does is start getting your courts used to constitutional language and the idea that your parental rights are deserving of more protection than the courts have been providing.
This bill gets you past the first hurdle and then you can work on teaching your legislators and courts that there are some harms that they are not allowed to protect the child from and one of them is divorce and the fact that divorced parents can make decisions that judges may not like, and the judge is not supposed to be judging or punishing them for this — these are just differences in parenting beliefs, values, and morals.
I can see where this bill is attempting to put that protection in there, and it has made some important good steps towards this, so you should vote YES for HB 4113 when it gets re-introduced in January 2018.
Doesn’t This Bill Require Equal Parenting?
Could a judge just say okay I’m going to go with equal no questions asked, sure, but will they is the big question. We do not seen them do that in general. The proposed bill does not require equal parenting, it requires that the parent wanting to restrict the equal parenting prove their claims to a higher standard. Just saying they do not like you will not be enough, now the parent will be required to provide more evidence. That evidence could come in the form of experts testifying, and others doing studies on your lives. Invasions of privacy and private decisions is what I see happening with this if the other parts of the code, some of which have been mentioned in this blog post, are not addressed some time soon.
In fact, most cases being brought o the judge are because a parent is arguing that it is not in the child’s best interest to be with you equal time, that’s not going to change. And that is not going to change as long as the judge continues to believe that a parent has a right to ask the court to use its power to strip the other parent of their equal rights just because the parents no longer agree and make different parenting decisions.
What I believe what you will see is the attorneys and the parents adapt to the requirements and use the loopholes to continue to strip children of their equal time with both parents, and imposing more costs on you, and still requiring you to fight for that equal time. You could also see increased accusations and allegations to prove that you are endangering the moral health and emotional well being of the child. After all, what is going to stand in the way of the judge imposing more costs on both parents, certainly not the current law. And the appellate courts aren’t going to limit the judge when he continues to have the unlimited discretion in the code lacking the proper constitutional presumptions, including discretion in making the determination of what endangers the child. The appellate courts will continue to say that it is the judge who is the fact finder and decides what is credible and what is not and what is let in as evidence and what is not, and ultimately the decider of whether the evidence proved your child was endangered. So I guess what I am saying is think about limiting the judge’s discretion to apply his/her own idea of what endangers your child and propose some definitions to guide them to apply the proper protections and to help them prevent making the same errors that are being made today. The challenge will be moving them off of using the “abundance of caution” approach that they apply now as their excuse for ignoring constitutional guarantees.
If you want the courts to start applying the correct starting points that limit their discretion, you have to take out the ideas that they grant or allocate your rights.
So while I do love that this proposed bill in Illinois is replacing preponderance with “clear and convincing” and attempting to limit the judge’s discretion by inserting the requirement that a judge cannot reduce a parent’s time with their child less than equal unless the parent is unfit or a danger to the child’s “physical, mental, moral, or emotional health,” the work needs to continue as this will not be the end of abuse of power in the family courts.
Continue to look for these loopholes. For this bill, after it passes, I would suggest that the sponsor and these parents who have spent their time getting this bill in, ask for an interim charge to monitor the implementation of the legislation and to provide something in the bill that allows the legislators to amend at any time to effect the proper implementation of its intent.
As an additional note, where the current law says “eliminate the consideration of marital misconduct in the adjudication of rights and duties incident to dissolution of marriage, legal separation and declaration of invalidity of marriage,” this is a good place to add into the law that the judge also should not be allowed to use “the discord and disagreement between the parents throughout and after the divorce or separation” for stripping a parent of their equal rights and time with their child either.
I applaud the parents and the sponsor of this bill who have worked to put this bill together with their legislators and encourage them to continue to learn about their rights. Work still needs to be done to limit these broad phrases “unfit” and “physical, mental, moral, or emotional health.” There needs to be very specific statutes defining what precise actions create these conditions before these statements can be fully constitutionally compliant.
An Example of How You Could Add Some of These Constitutional Protections.
For instance, Illinois could change section (a) to read as follows:
“The court’s discretion is limited by the well-established protections for the substantive rights at issue and these substantive rights shall be applied to all parents equally and individually. The court shall make their rulings regarding parental decision-making responsibilities by first applying the Mathews’ test and providing constitutional protections to each parent and child from interference in these rights and shall use the least restrictive means.” Parents have a right and duty to protect their children from unwanted government interference and influence in their private lives and the judges will respect this. No parent has a claim on the rights of the other parent and the state may not create a cause of action creating such a claim. The courts may protect the equal rights of the parents by providing a parenting plan declaring the pre-existing rights and that establishes periods of time where each parent may exercise primary right, but said plan must meet the requirement of least restrictive means.
Choices to divorce or separate are constitutionally protected private choices and cannot legitimately be used as a trigger or threshold for any judge to invade the private family realm of the parent-child family relationship. Where the courts intrude into this space, the courts create harm to the child and to the protected relationship. Therefore, judicial intrusions must be meaningfully justified in specific terms.
The current family court practices have proven to be more damaging than the divorce or separation itself. Every once in a while you see examples of the damage that the current adversarial process causes parents and their children in the crimes being committed by people being stressed out by the process, the increased suicides in parents and children, homicides, and mental health issues like PTSD and depression in parents and children who were never depressed before, after suffering legal abuse and the shock of the very courts you thought were there to protect your rights actually violating them and keeping you from your children over nothing more than legal choices and disagreements that can easily be solved through less restrictive means. Your right to disagree with the other parent regarding childcare beliefs and values is an absolute right of conscience, your right to communicate these beliefs and values through speech with your spouse or ex-spouse is constitutionally protected free speech, even when you are arguing.
It should be easier now to get to that next and final stage of integrating the constitutional protections that will give these bills the teeth needed to enforce the rights you and your child are entitled to.
Full text of HB 4113 here.
You can find Illinois Fathers for Equality on Facebook, Twitter, and Instagram.
Here is a list of shared parenting studies and articles to help you convince your legislator that equal parenting is also supported by the mental health studies compiled by Illinois Fathers for Equality. This list includes studies and white papers from Dr. Richard Warshak, Linda Nielsen, and Edward Kruk. You will be armed with the 16 reasons it is in your child’s best interest to support equal parenting and more.
Thanks for sending this bill over to my attention Laps for Love!
I hope that all of you will vote YES for HB 4113.
This feedback is meant for educational purposes.