excellence. experience. empathy.
Below is a written statement I submitted to my legislators regarding HB4113:
While the intentions behind HB 4113 may be good, the legislation represents a drastic change to Illinois law that would be disastrous for Illinois’ children. While those outside the family law arena may perceive HB 4113 to propose minor changes, HB 4113 actually puts a finger on the scales of justice and compromises the fairness of custody litigation in Illinois.
I’ll be honest: I do not love the proliferation of the fathers’ rights and mothers’ rights ideologies. It’s just not reality – neither parent has a set of rights that is unique or superior to that of the other. A belief that one parent has an inherent set of rights different or superior to the other fosters polarization and animosity when in reality all anyone really wants (at least should want) is what is best for his or her child. When a party digs in and becomes so entrenched in an ideology or feeling of entitlement, it spells disaster for everyone involved. Not unlike the political environment we find ourselves in these days, anything less than a blowout win and the complete evisceration of the opposition becomes unacceptable to this person. Under such conditions, we are all losers – the parties, the lawyers, and most of all the children. I am a family law practitioner; I’ve practiced law for nearly ten years. In my practice, I have represented mothers, I have represented fathers. I have not once advocated for a certain parenting time division or parenting plan provision based merely on the fact that my client was a mother or father. Further, I have never received a ruling from a judge based on whether the parent was a mother or father.
As they currently stand, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) and the Illinois Parentage Act provide ample guidance for Illinois judges when it comes to decisions about parenting time and parenting responsibilities (f.k.a. custody). The statute enumerates explicit factors to be considered including the child’s relationship with both parents, the particular needs of the child, and each parent’s ability to put the child’s interests above his or her own. The overarching standard, of course, is the best interests of the child. Each case and each child present its own unique set of circumstances that must be evaluated and weighed before a decision can be made. By presuming that equal parenting time is in the best interests all children, HB 4113 ignores the subjective nature of family law cases. I have seen many cases where equal parenting time was in the best interests of the children, and I generally agree with the proposition that children are better served with the involvement of both parents; however, I still believe that a wholesale pre-determination of parenting time is misguided for a number of reasons.
Even more troubling than the proposed presumption is the proposed change in the burden of proof. Under HB4113, the burden of proof shifts to any party seeking anything but an equal parenting time schedule; the presumption may only be overcome by “clear and convincing evidence.” This burden is very high, and nearly renders any challenge to an equal parenting time schedule over before it starts. A challenge to an equal parenting time schedule would require protracted litigation – in other words, attorneys’ fees, guardian ad litem fees, lost wages from days spent in court, etc. Not many can afford to sustain litigation at the level necessary to meet the clear and convincing standard that would be necessary to defeat the presumption. Additionally, victims of abuse would be forced in continuing contact with their abusers over the course of litigation. This proposed change in the burden of proof only magnifies how ill-advised HB 4113 is.
The cherry on top of the bad idea sundae is the proposal that would require a party to prove the other is an unfit person before parenting time may be restricted. In other words, before parenting time can be restricted, a parent must be the standard necessary to terminate the other’s parental rights. If this is enacted into law, the potential of harm to children will increase exponentially. There are a vast number of reasons why a party may seek to restrict the other’s parenting time that have little to do with the other parent’s fitness; this proposal ignores this and completely ignores the best interests standard.
The gold standard to remember in this instance is the best interests of the children. It is the cornerstone by which Illinois cases are decided. If this legislation is enacted, the legislature will be putting the interests of best interests of a few litigants above those of Illinois children. I implore you all to vote against HB 4113.
 With the exception of breast-fed infants, for obvious reasons. Even in those instances, the court has made an effort to fashion a schedule that provides ample parenting time for dads.
 “’Clear and convincing evidence’ means that measure or degree of proof that will produce in the mind of the trier of fact a high degree of certainty as to the truth of the allegations sought to be established. This evidence requires a greater degree of persuasion than is necessary to meet the preponderance of the evidence standard.”