Divorce proceedings are typically long, drawn out and traumatic for everyone involved, and this is particularly true in cases involving young children. That is precisely why, in 1977, Illinois state legislators sought expert advice and debated the issue extensively before drafting and passing the Illinois Marriage and Dissolution of Marriage Act (IMDMA). One of the key tenets of the current statute is that the court shall allocate parenting time "according to the child's best interests" rather than the desires of either parent.
The proposed bill, HB 4113, seeks to amend the current legislation pertaining to the Allocation of Parental Responsibility (formerly known as Custody) by inserting a "one-size-fits-all" presumption that equal parenting time is in a child's best interests and appropriate for all cases.
Mandating 50/50 parenting time regardless of the circumstances would place an unfair burden on survivors of domestic abuse and sexual assault by forcing the attorney for the non-offending parent to rebut the presumption that equal parenting time is in the best interest of the child. Additionally, funds for legal representation are typically not an option for many victims.
Attorney Michael Strauss, who specializes in family law and is a board member for A Safe Place (Lake County's largest domestic violence nonprofit), is the co-author of the Illinois State Bar Association's (ISBA) resolution opposing the measure. "The bill would strip judges of discretion and allow for little flexibility, if, say, the parents live hours apart from each other," says Strauss. "The bill has no focus on the children at all. Its sole focus is on what's best for the parent, and it simply treats the children like property."
HB 4113: Proof Requirements are Nearly Impossible to Satisfy
Experts agree that requiring a survivor of spouse-inflicted physical, sexual assault or long-term psychological trauma to prove they experienced abuse is unrealistic if there is no evidence of physical abuse.
"Chronic perpetrators can become experts at physically harming their victims in ways that do not leave marks on exposed parts of the body," explained Dr. Rappaport, Ph.D., ABPP, Child & Adolescent Psychologist. "Ongoing verbal and psychological abuse leaves emotional scars with no physical evidence. Often victims are ashamed or are threatened not to tell so they hide evidence of physical abuse."
"HB 4113 would require the abused spouse to expend time, money and energies proving the abuse, which is often difficult to do in family court. The main focus needs to be on the best interest of the child," continues Dr. Rappaport. "Abuse without proof could be placing children at risk for serious physical and emotional abuse."
Not in the Best Interest of the Child
Dr. Rappaport contends, "HB 4113 is misguided in its assertion that presumed equal parenting time is in the child's best interests because while this arrangement may allow one child to flourish, it may be harmful to another child." He states it has the potential to harm children substantially because it will drastically change the way parenting time is determined in divorces by requiring judges to presume that equal parenting time is always in the best interests of the child. "Also, experts assigned to the case may not understand the dynamics and forms of domestic abuse and the ramifications of equal parenting time and responsibilities," says Rappaport.
A legal presumption of equal parenting time effectively diverts focus from the child's needs, relationship with parents, and other unique factors. In cases involving physical violence, emotional abuse, orders of protection against one parent, or when situations make it impossible for parents to live geographically close to each other, there is no "one-size-fits-all" solution to questions of parental responsibility.
"Some children transition easily and some don't," says Dr. Rappaport. "Understanding a child's functioning and adaptability must be taken into account when developing parenting schedules for children, especially since different children react to various parenting plans in different manners. Scientific data doesn't support that a 50/50 schedule is in the best psychological interest of the child, as a general rule. There is no one parenting plan that fits all families. If we have a bill that says 50/50, it takes away the court's ability to devise an individual plan that's in the best interest of the child."
According to Carrie Boyd, Director of Policy, Illinois Coalition Against Domestic Violence (ICADV), which serves over 50 statewide agencies who provide services to survivors of domestic violence, HB 4113 would make it an across-the-board mandate that equal parenting time is in the best interest of the child. "Judges, parents and the attorney involved (if there are funds for one), would have to start from this dangerous framework," states Boyd. "Many domestic violence victims have been in abusive situations, their children have been in abusive situations, and they have already been coerced and manipulated by the abuser. In many divorce cases, children are used by the abuser to gain power and control. Now the courtroom becomes just one more tool in the abuser's arsenal to use against the victim at the expense of the children."
HB 4113: Increases Litigation and Places Unfair Financial Burden on the Less Wealthy
The Illinois Dissolution of Marriage Act just underwent the largest overhaul in history. The entire basis of the amendments, which took effect on January 1st, 2016, was to make the courtroom a place where there is less litigation and to encourage cooperation among parents.
"HB 4113 would ratchet up litigation and encourage fighting in the courtroom," says Boyd. "It would complicate the matter further and squander limited state funding by forcing cases involving disagreements over the equal parenting time presumption to go through costly and time-consuming litigation, something that most victims, especially those with small children are hesitant to do. A violence victim is going to have to either retain counsel, which is incredibly expensive, or rely on free legal representation, which is very hard to find in this state. We just don't' have enough free representation through legal aid or pubic interest to meet the needs."
Victim advocate organizations maintain that if equal parenting time is forced on financially struggling families, it can affect the custodian's ability to qualify for state aid and other financial assistance. The Illinois Department of Human Services (IDHS) is required to establish whom the child lives with in order to award public assistance. If both parents have equal parenting time, the parents must decide whom the child lives with in order for the child to qualify for public assistance per IDHS guidelines. In cases of 50/50 parental responsibility, neither parent may qualify for public aid.
"This may become another contentious legal issue if HB 4113 and 5509 (a similar bill being presented that affects couples not legally married) become law," warns Strauss. "It will create havoc in the family law court system as parents' battle over who the child lives with. If the parents cannot agree and the local IDHS office is unable to make the determination, it is possible that no public assistance benefits will be available for the child."
"The ultimate loss of public assistance would be borne by the child, and would further impoverish needy families. Illinois currently receives significant federal funding for our public assistance program for needy families and such disputes would negatively impact the desperately needed funding Illinois receives for this program from the federal Title IV-D program," says Strauss.
"Abusers are masters of power, control and manipulation," shares Charlene, a domestic violence survivor and former Lake Forest resident.
"Stay home, travel with me, raise our kids- I make enough money," she recalls her former husband saying. "He was smart and successful. I believed in him. So, I quit my job as a CFO at a publishing house, and the day before our wedding, he handed me a 28-page pre-nup that stated everything would be his and I would have no say in the matter. Every married woman who is an abuse victim can, in hindsight, pinpoint the day the abuse started, which is almost always around the wedding day. That was my day."
Within weeks of the wedding, he became verbally abusive to Charlene and repeatedly threatened divorce. She left for a brief time, and his short-lived promises of change lead to the birth of children, but afterwards, the abuse returned and escalated. "He knew that it would be harder for me to leave as I had no job and he controlled the money. Once a woman has kids, an abuser knows that she'll do almost anything to keep her family together. I call them 'anchor babies.'"
Even though the abuse escalated verbally, financially, emotionally, physically and sexually throughout their 21 years of marriage, like many women with children, Charlene remained hopeful for change, poured through marriage books, attended seminars, and stayed in the marriage to protect her children until she could no longer do so after he repeatedly raped and stalked her. She left with just an overnight bag and went into hiding for two years.
"We lived in a $2.5 million home. He even attended church with me. He's intelligent and charismatic in public, so he made sure there were no scars or bruises. No one wants to believe there is abuse when the abuser is charming and affluent and attends church. Even when I went to the police and DCFS, he just denied it and it became a 'he said/she said' situation. It's nearly impossible to provide hard evidence of domestic abuse. Abusers will always use the court system to further their abuse and use the children as pawns. They want to 'win' at all cost."
Charlene's journey has led her to seek a law degree. Today she has her own legal practice dedicated to helping victims of domestic abuse. "My mission now is to help women overcome abuse. I am blessed every day to help women become victors, not victims."
How to Oppose HB 4113
"It's important that everyone who opposes HB 4113 to do whatever they can to share their concerns with elected officials and others influential parties, says Jim Covington, Director of Legislative Affairs for the Illinois State Bar Association, one of the many organizations against the bill. "All politics is local and nothing moves a legislator more than receiving a personal phone call or note from his or her constituents. It's simple and old school, and that's the most effective way to have an impact. I encourage people to pick up the phone and call their legislator to express their opposition regarding this bill because legislators pay attention to direct contacts from their constituents."
The Illinois Coalition Against Domestic Violence (ICADV) encourages everyone who opposes HB 4113 to use what resources they have at their disposal, whether it's making phone calls, writing letters, engaging with other allied groups, and/or using social media to get the word out about this misguided and harmful legislation. To voice your opinion, please click this link to the Illinois General Assembly webpage where you can search for your district representatives and senators: http://www.ilga.gov/.
Growing List of Professionals Opposing HB 4113
Below is a partial list of the many professional organizations, advocacy groups and individuals opposing HB 4113:
• Illinois Coalition Against Domestic Violence (50+ statewide member agencies)
• Illinois Coalition Against Sexual Assault (29 statewide member agencies)
• Office of the Cook County Public Guardian
• Illinois State Bar Association
• The Chicago Bar Association
• Kane County Bar Association
• Du Page County Bar Association
• Lake County Bar Association
• Illinois Chapter of the American Academy of Matrimonial Lawyers
• Chicago Metropolitan Battered Women's Network
• Loyola University Child Law Center
• Rape Victim Advocates
• Life Span
• Illinois NOW
• Planned Parenthood of Illinois
• Sargent Shriver National Center on Poverty Law
• Chicago Coalition for the Homeless
• Family Defense Center
• Chicago Says No More
• Ezra Multi-Service Center
• Jewish Child & Family Service
• The Decalogue Society of Lawyers
• National Council of Jewish Women (NCJW), Chicago North Shore
• National Council of Jewish Women (NCJW), Chicago South Cook
• The Illinois State Bar Association (ISBA)
• Illinois Association of Court Appointed Special Advocates
• Chicago Children's Advocacy Center
• Archdiocese of Chicago Domestic Violence Outreach
• American Academy of Matrimonial Lawyers (AAML)
• Tamika Walker, attorney, Chair of the Family Law Section Council for the Illinois State Bar Association
• Hon. Arnold Blockman, retired judge (Champaign area)
• Illinois State Senator Melinda Bush
• Illinois State Senator Julie Morrison
• Pat Davenport, CEO/Executive Director, A Safe Place
• Michael Strauss, Attorney specializing in family law and Board Member, A Safe Place
• Sara Block, Attorney and President of SHALVA
• Laura Ashmore, President, The American Academy of Matrimonial Lawyers
• Dr. Sol Rappaport, Ph.D., ABPP, Child & Adolescent Psychologist
• Carrie Boyd, Director of Policy, Illinois Coalition Against Domestic Violence (ICADV)
For more information about HB 4113 and domestic violence awareness, call (847) 731-7165 or visit www.asafeplaceforhelp.org. Victims of Domestic Abuse or Violence are encouraged to call A Safe Place's discrete 24-hour Help Line at 1-800-600-SAFE or (847) 249-4450.
About A Safe Place
Founded in 1978, A Safe Place is the leading advocate for eliminating domestic violence in northern Illinois, and is Lake County, Illinois' only provider of services exclusively for victims of domestic violence. A Safe Place provides emergency shelter, permanent housing, a 24-hour crisis line (847-249-4450), court and non-legal advocacy, individual, group, and children's counseling, art therapy, family visitation services, batterer intervention services; and community outreach, prevention education, and professional training. Our service area includes Lake, McHenry, and northern Cook counties in Illinois; however, our clients come to us from across the state, region, and country. For more information about domestic violence issues and HB 4113, call A Safe Place at 847-731-7165 or visit http://www.asafeplaceforhelp.org, Facebook and Twitter. Victims of Domestic Abuse or Violence are encouraged to call A Safe Place's discrete 24-hour Help Line at 1-800-600-SAFE or (847) 249-4450.