July 12, 2018
17 of the Most Asked Questions About Child Custody in Illinois
Divorce and child custody are tough legal issues to go through for you and your family. Our attorneys at O’Dekirk, Allred and Associates in Joliet can discuss the important questions and answers about child custody in Illinois and help you through the legal process.
Here are some commonly asked questions about child custody.
What happens if the parents live in different states or a parent has recently moved in/out of state?
To prevent conflicting child custody opinions from courts in different states, jurisdiction and the child’s home state for custody matters will be decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The Illinois divorce court has jurisdiction to hear a child custody case under these circumstances:
- The child has lived in the state of Illinois for the last six months or more.
- If the child is younger than six months old but the child has lived in Illinois since birth.
- The child lives in another state but lived in Illinois within the past six months and one of their parents still lives in the state.
- If no other state is the child’s home state or the child’s home state has declined to take jurisdiction in deference to Illinois, and either the child and at least one of their parents has significant connections with Illinois, and there’s substantial evidence in Illinois concerning the child’s care, protection, training, and personal relationships.
What factors are considered when awarding child custody in Illinois?
The court does not focus on who is the best parent, but instead makes a decision in the child’s best interest, considering all relevant factors, including these and other considerations:
- The wishes of the child’s parent parents about custody of the child
- The wishes of the child about which parent will get custody
- The interaction and relationship of the child with their parent(s), sibling(s), and others who affect the child’s best interest
- The child’s adjustment to their school, home, and community
- The mental and physical health of the people involved
- Whether there has been physical violence or a threat of physical violence by the one of the child’s custodian, either against the child or another person
- Whether there has been domestic violence, either directed against the child or another person
- The willingness and ability of the parent to encourage a close relationship between the other parent and the child
- Whether either of the parents is a sex offender, and
- If the parents have a military family care plan that must be completed before deployment or if the parent is a member of the U.S. Armed Forces who is being deployed.
These factors and others go into the court’s decision for custody. One thing the court cannot consider is a parent’s conduct unless it affects that parent’s relationship with the child.
What types of custody arrangements are there?
Like other states, there is a difference between legal and physical child custody in Illinois. Physical custody is where the child lives.
Legal custody gives the parent the right to make important decisions about raising the child, like the child’s school, health care, and religious training. The noncustodial parent can ask the court to specifically limit the custodian’s authority if it’s in the best interest of the child.
Do parents have equal rights in a child custody decision?
Yes. Parents have equal rights to child custody in Illinois. A parent’s fitness is only one element to be considered in determining what is in a child’s best interest.
How important is stability and continuity in a court’s custody decision?
If the children are well-adjusted and the custody situation is working, a court will not want to disrupt it. The court takes into consideration the importance of maintaining stability and continuity in a young child’s environment. On the other hand, courts will remove a child from an unstable environment if it believes the child is not thriving.
Do parent’s psychological problems affect the decision regarding child custody in Illinois?
Just because a parent has a mental illness, psychological problem, or substance abuse issue does not make them unfit for custody, but it may be a factor to be considered by the court in deciding the best interest of the child if it affects their ability to parent. Despite positive steps toward treatment, the court must consider what impact the parent’s problems will have on the child.
Are joint custody arrangements preferred?
A court can give joint custody to both parents or sole custody to either. Unless there has been domestic violence, Illinois courts presume that the maximum involvement and cooperation of both parents in their child’s physical and emotional well-being will be in a child’s best interest.
How does a parent’s new spouse, live-in companion, or other person sharing the home impact a custody decision?
Another person living in the home may be a factor in the decision if there is concern that they negatively affect the stability of the child’s environment, or there are concerns with the mental condition and character of that person. If that person is a sex offender, the other parent must be notified.
Will siblings be kept together?
It is usually considered to be in the best interest to keep siblings together. Sometimes there are exceptions.
Can children voice an opinion in custody decisions?
Yes, but it is just one factor to consider. The court may put more weight on the choice of older children when it is based on sound reasoning, and relates to their best interests, like wanting to remain with friends, attend their school, and remain in the same place.
What if the child decides he or she wants to live with the other parent?
Even if the child’s preference of who they want to live with changes, it still needs to be shown that the welfare of the child is adversely affected by the present custodial arrangements.
Does spousal abuse affect the child custody decision?
In Illinois, if there has been ongoing abuse, the court does not need to presume that the involvement and cooperation of both parents in raising the child is in the child’s best interest. On the other hand, the court doesn’t have to deny a parent’s custody based on spousal abuse.
What happens if the custodial parent dies or is incarceration?
If the custodial parent dies, usually the other parent gains legal custody of the child. If the custodial parent is incarcerated, the noncustodial parent has a right to petition for a change of custody.
Can you get a custody modification based on a custodial parent’s misconduct?
Yes, if the parent’s behavior affects the child and seriously endangers the mental or emotional health of the child.
Can a custodial parent move the child within the state?
A custodial parent may remove the children to another part of the state without a court order unless there is written agreement not to. This may, however, be grounds to petition for custody modification.
Can a parent take a child out of Illinois temporarily?
Yes, but the parent responsible must tell the other parent, or the other parent’s attorney, and give the telephone number and address where they can be reached while they are out of state, and the date when the child will return to Illinois.
Can a custodial parent move out of state with the child?
A child can’t be removed permanently from the state without a court order. The custodial parent must prove that the move is in the best interest of the child.
If you are considering a divorce and are worried about child custody issues, please contact our attorneys at O’Dekirk, Allred and Associates in Joliet. We can discuss the important questions and answers about child custody in Illinois during a free initial consultation.
June 14, 2018
How to Create an Illinois Parenting Plan
This will define who will make certain decisions about your children.
Our attorneys at O’Dekirk, Allred and Associates in Joliet can help you through this process, protecting your rights and helping you fight for what’s best for your children.
What is an Illinois Parenting Plan?
In a divorce where children are involved or parentage case, parents have 120 days (720 ILCS 5/602.10) to file with the court, jointly or separately, what is called a parenting plan. This is a temporary plan that will become the permanent plan for at least the next two years.
What if the Parents Cannot Agree?
On the status date, lawyers for the parents will tell the judge whether the parents have reached a joint agreement on the parenting plan on all issues of parental responsibilities, including decision-making powers and all parenting time issues. If the parents don’t agree on ALL issues, the court will send them to mediation.
Can You Request an Extension?
Yes, but it's not guaranteed. According to the Illinois parenting plan rules, if the parents cannot agree on all points of a parenting plan by the status date, they’re allowed to request added time and so they can continue working together outside of mediation, or for good cause if the judge agrees. (750 ILCS 5/602.10(e)(1), (2), and (3))
We've Agreed, Now What?
When the parents agree on all points of the parenting plan, it is written up, signed by the parents, and is binding on the court. (750 ILCS 5/602.10(d)).
We Can't Agree, Now What?
If the parents can’t agree on the parenting plan, then they must each submit their own plan to the judge. The judge will first approve the items the parents agreed on. As for the ones that are still in dispute, the judge will make the final decision. At this point, the outcome is considered an allocation judgment instead of a parenting plan.
What Should an Illinois Parenting Plan Include?
The parents must discuss and include the following items in the plan:
- Decision-making responsibilities
- Living arrangements for the child
- Mediation for any changes
- Right of access to medical, dental, child care records, and school and extracurricular records, reports, and schedules
- Designation of the parent with the majority of parenting time
- The child's residential address for school enrollment
- Each parent's residence address and phone number, employment and employment address and phone number
- Notice if a parent changes their residence
- Notice of emergencies, healthcare, travel plans, or other significant child-related issues
- Transportation arrangements between the parents
- Provisions for communications
- Provisions for resolving issues arising from a parent's future relocation
- Provisions for future modifications of the parenting plan
- Provisions for exercising the right of first refusal that is consistent with the best interests of the minor child
- Any other provision that addresses the child’s best interests or that will otherwise facilitate cooperation between the parents
The Illinois parenting plan rules and steps can be confusing. So, it’s important to have proper guidance when protecting your parental interests and doing what’s best for your child.
Our experienced lawyers at O’Dekirk, Allred and Associates in Joliet can effectively put you in the best possible position to achieve the outcome you desire. Please call or contact us today for a free consultation.
June 3, 2018
Parental Responsibilities in Illinois (What You Need to Know)
Finalizing your divorce often involves a judge, who knows very little about your life, making final and broad-reaching decisions about what each parent can and cannot do.
If you are thinking about a divorce, it is important for you to get honest legal advice from experienced professionals. Our lawyers at O’Dekirk, Allred and Associates in Joliet understand the most current laws that affect the basics of parental responsibilities in Illinois.
Let’s look at everything you need to know.
Parental Responsibilities in Illinois
In Illinois, as it pertains to divorce, the word custody has been replaced with the word decision-making. The word visitation is now parenting time. Parents are required to make a parenting plan and if they can’t agree, the judge will decide what their parental responsibilities are. This means the judge will tell the parents who will be making decisions for the child and who gets parenting time.
Time Given to Create a Parenting Plan
You have 120 days to submit a joint parenting plan. If you can’t agree then each parent submits a separate plan and it becomes an allocation judgment (see below). You may also request an extension or may be required to use a mediator to work out differences and complete the parenting plan.
What's an Allocation Judgment?
Parents are charged with making a parenting plan that sets out the basics of parental responsibility in Illinois family law, such as decision-making boundaries and parenting schedule. But what if they can’t agree? Now, the judge has to decide for the parents and give an allocation judgment based on the best interests of the child. (750 ILCS 5.602.5(a))
The judge’s allocation judgment for significant decision-making will cover the areas of education, health and religion. The judge then assigns decision-making tasks to one parent or the other (or both), and they can be divided any way the judge sees fit. In fact, even if you don’t get divorced, you can ask the court to assign parental decision-making power for you.
If the parents can’t decide on a parenting schedule in their parenting plan then a judge can also decide that according to the child’s best interests. (750 ILCS 5/602.7(a))
Temporary Allocation Awards
When there is significant discord regarding decisions for the child during a divorce, the judge can make a temporary allocation of decision-making power between the parents which can’t be appealed.
The Need for Mediation
All parents in family court must try to mediate problems involving the basics of parental responsibility in Illinois family law. You may be assigned a court-appointed mediator, and some counties, the mediator will make recommendations to the judge. Confidentiality of the information you give to the mediator depends on the county you live in.
Which parent makes the decisions about your child and who gets parenting time will affect the whole family and may be the most important results of a divorce. Don’t try to figure out the basics of parental responsibilities in Illinois family law on your own. Our lawyers at O’Dekirk, Allred and Associates in Joliet understand the new laws and can protect your interests and your child’s future. Please give us a call and let us help you fight for your rights to make decisions for your child.
April 9, 2018
5 Things You Should Do When Facing a First Offense DUI
Imagine this scene: you're having happy hour cocktails with friends from work, and the night is winding down. You're a little buzzed, but don't feel drunk. You know you should probably not drive, but home isn't far, so you decide to go for it.
You only get a few miles down the road when you see the police lights in your rearview mirror. The next thing you know, you're being booked at the local police station for a first offense DUI.
It only takes a few critical decisions to join the ranks of 1.5 million people who are arrested for drunk driving every year.
When getting a DUI, it's important to know what steps to take to ensure your rights are protected. Here are 5 steps you should take right away.
1. Stay Level Headed
If you get pulled over, it is crucial to keep your calm. While you probably won't be able to talk your way out of a first offense DUI, being rude to the officer certainly won't help your case.
Make sure to cooperate with the officer's requests and directions. Legally, you have the right to refuse a breathalyzer test and the field sobriety test. Keep in mind, however, that the officer may still decide to arrest you for a DUI charge.
Refusal of these tests may eliminate certain evidence against you.
2. Contact an Attorney
After you have been charged with a first offense DUI, you will probably have to make court appearances. This is where you will face sentencing, and could be charged with fines, probation, or even prison time.
You will have the option to represent yourself in court, but this is not necessarily a good idea. An attorney will better understand your unique circumstances and can navigate the legal process.
Also, you should make sure to contact an attorney who has experience with DUI cases. Just because your buddy went to law school does not mean that they know how to help you with a DUI. With the consequences that are at stake, it is crucial to be represented by someone who knows how to get the best outcome for you.
Depending on the incident that led to the DUI, the case could go on for a long time. For instance, if there was a collision that involved another vehicle or property, you could be sued for personal injury or property damage. If this happens, the case could drag on for several years.
3. Get Your Story Straight
If you are facing a case that could take several years to resolve, you should make sure to get your story straight as soon as possible. You will likely be asked to give statements and multiple depositions. If details change from one deposition to another, it can make your testimony look weak.
Write Things Down
Do you remember what you were doing three weeks ago tonight? Probably not off the top of your head. You would likely need to consult your calendar or people who were with you.
For this reason, you should never rely on your memory to help you keep your facts straight when it comes to legal issues. You may forget minor details that seem minor to you, but that opposing counsel can latch onto.
Write things down like where you were, who you were with, what you did, etc. This will help you ensure that you are telling the truth with consistency.
Talk to Witnesses
If there were witnesses the evening you were out or in the vehicle at the time of the DUI, make sure to speak with them as well. Their testimonies will also be important.
In the best case scenario, what they remember can help you. But even in the worst-case scenario, it's better to hear a testimony that will hurt your case before the fact.
Whenever you are dealing with legal issues, it is important to be circumspect about who you share details with. For example, your coworkers do not need to know everything about your case. You should also avoid discussing details in public places.
Additionally, be mindful of what you share on social media. Even something that seems harmless, like sharing photos of nights out with your friends, could hurt your case. For instance, if your pictures frequently have alcohol in it, opposing counsel could use that as evidence against you, perhaps imply that you're an alcoholic.
4. Understand the Consequences
As you get started with your case, it is important to know what kinds of consequences are at stake. Depending on the severity of the charge, you may face hefty fines or prison time.
In most cases, your license will be suspended for some length of time. You may also need to take an alcohol education or driver education course.
If you are mandated to do these things, you should always follow through. The more compliant you are, the more smoothly the process will go.
5. Talk to Your Insurance Company
Often, after a DUI, you will see your insurance rates go up. This is because insurance rates are based on how the insurance company evaluates the risk of having you as a client. If you are charged with a DUI, that will make you seem at higher risk of causing an accident.
Reach out to your insurance company to see what kind of rate increase you can expect. Also, find out if there is anything you can do to bring your rates back down. Sometimes a driver education course may help to lower your rates again.
Know What You Should Do After First Offense DUI
Even a first offense DUI can have serious consequences. But, if you know how to navigate the next steps, you can make sure that you get your life back on track.
Need help with your DUI offense? Contact us today to speak with one of our expert attorneys about your case for a free consultation.
March 28, 2018
The Latest on Pot Laws in Illinois
Here at O’Dekirk, Allred & Associates in Joliet, we wanted to share a bit about the latest on pot laws in Illinois. With laws changing frequently state by state, it’s easy to be confused about what’s going on here in Illinois. So, to provide clarity, medical marijuana is legal and recreational marijuana is not – that includes growing and possession.
Legal and Not Legal
Cannabis, generally known as marijuana, is illegal to grow and possess. This includes the leaves and flowers. It also includes the following forms:
- Hash oil
- Seeds that can grow into a cannabis plant
- Infusions, including tea, brownies, and lotions
- Any resin extraction
Hemp, which is the mature stalks of the cannabis plant, is legal. Hemp oil and hemp fiber are also legal.
According to pot laws in Illinois, it is illegal to carry cannabis on your person, in your car, or in your home. Luckily, the state took steps to decriminalize cannabis in 2016. Now if you’re caught with 10 grams or less of marijuana, you will face a civil citation and fine of up to $200. Prior to the change in laws, it would’ve been a Class B misdemeanor that came with jail time of up to 6 months and fine maximums of $1,500. However, more than 10 grams will subject to a criminal charge and large amounts of cannabis can result in felony charges.
It is also illegal to sell or deliver cannabis to another person. It is additionally illegal to carry cannabis with the intent to sell, deliver, or manufacture. Actual sales or production do not have to take place in order for the activity to result in a charge.
If you or someone you know is facing a criminal cannabis charge, please contact us here at O’Dekirk Allred & Associates in Joliet for a confidential consultation.
If you are charged with a civil offense, you will generally be fined in accordance with how many times you have been caught with marijuana before. Some areas have additional laws with respect to marijuana possession. You can be fined at both a state and local level. Additionally, some local areas will fine you for possessing what is considered to be a personal amount (10 grams or less).
The various tools used to grow, produce, process, distribute, measure, or ingest marijuana are also illegal in Illinois. The pot laws in Illinois state that paraphernalia can include digital scales, grinders, zipper bags, smoking masks, bongs, pipes, products used to pass a drug test, and containers used for hiding or storing marijuana. Additional information is taken into account when determining whether an object is paraphernalia, including whether cannabis was present or near the object and whether the object can actually be used to ingest marijuana.
Driving under the influence of cannabis is illegal. If you are under the influence and have more than 5 nanograms of THC in your system, you can be charged with a DUI.
The latest on pot laws in Illinois may be more lenient but can still result in serious criminal charges. If you or someone you know is facing criminal charges related to cannabis, contact us here at O’Dekirk, Allred, and Associates in Joliet for help with drug offenses.