Parenting Time Vs. Visitation: What's The Difference?

Changes in divorce law mean changes in terminology.

Filed in Child Custody, Divorce, on July 14, 2017

On January 1, 2016, Illinois dramatically changed the Illinois Marriage and Dissolution of Marriage Act. One of the sweeping changes made was to the terminology related to children. What does this mean for cases going forward?

Allocation of Parental Responsibilities (750 ILCS 5/602.5)

What we once called “sole custody” or “joint custody” is now referred to as “allocation of parental of responsibilities.” Now, parents are required to designate a “decision maker” in four major areas:

  1. Education (choice of schools, tutors, etc.)
  2. Healthcare
  3. Religion
  4. Extra curricular activities

This areas are collectively referred to as “significant decision making responsibilities.” Parents may be listed jointly in all four areas (similar to “joint custody”), or may allocate each area for one parent. One parent may be listed in all four areas of significant decision making responsibilities (similar to “sole custody”). If the parents cannot agree, the court decides under specific criteria outlined in the statute.

Allocation of Parenting Time (750 ILCS 5/602.7)

What we once called “visitation” is now called “allocation of parenting time.” Allocation of parenting time will still be considered in terms of what is in the best interests of the child. Under the old statute, when determining best interests, the court considered the following:

  • the wishes of the child’s parent or parents as to his custody
  • the wishes of the child as to his custodian
  • the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest
  • the child’s adjustment to his home, school and community
  • the mental and physical health of all individuals involved
  • the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person
  • the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
  • whether one of the parents is a sex offender
  • the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.

Many of the factors considered under the best interests standard remain unchanged, but some of the factors were expanded, and some new factors were added:

  • the wishes of each parent seeking parenting time (no significant change)
  • the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time (change includes generally how the courts view a child’s wishes when considering this factor and how much weight to give it)
  • the amount of time each parent spent performing care-taking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth (this factor is new)
  • any prior agreement or course of conduct between the parents relating to care-taking functions with respect to the child (this factor is new)
  • the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests (no change)
  • the child’s adjustment to his or her home, school, and community (no change)
  • the mental and physical health of all individuals involved (no change)
  • the child’s needs (this factor is new, but has always been considered by the courts under the best interests analysis)
  • the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement (this factor is new)
  • whether a restriction on parenting time is appropriate (this factor is new)
  • the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household (no significant change)
  • the willingness and ability of each parent to place the needs of the child ahead of his or her own needs (this factor is new)
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child (no change)
  • whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15) (this factor was significantly expanded to include not just consideration of whether a parent is the sexual offender, but also whether the parent lives with a sexual offender; this factor now also considers the nature of the offense and treatment received and provides for a hearing regarding this issues raised in this paragraph)
  • the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed (no change)
  • any other factor that the court expressly finds to be relevant (this is a new factor, but courts have always considered other relevant factors not listed in the statute)

Splitting parental duties into separate “significant decision making responsibilities” allows parents to assign these duties based on the strengths of each parent. The changes in the statute also reflect a shift toward focusing on both parents’ participation in raising children and a shift away from one parent being viewed as a “visitor.” The goal is to make both parents feel as though they are involved in the process of raising the children, rather than focus on who has legal custody.

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