Archive for the ‘Child Custody & Visitation’ Category
The trauma associated with a sexual assault or sexual violence can be extremely volatile. There are physical, emotional, and psychological wounds that may be near impossible to heal without significant assistance or time to help the survivor of sexual assault to get past the event. What makes this trauma even more difficult and overwhelming is the birth of a child who was conceived as a result of this violent and criminal act.
Parental Rights of Assaulters in Many States
Legislation put into place is attempting to remedy the effects that come from the birth of a child conceived as a result of sexual assault. In about half of the states, there are little to no protections of the mother against her sexual assaulter who may want to have a relationship with the child as the child’s father. Many of these states permit not only custodial rights, but also visitation rights, forcing the survivor of the sexual assault to maintain a relationship with her assaulter. Some states even give the father the right to prohibit the mother from putting the child up for adoption.
New Legislation to Cut Down Assaulters’ Parental Rights: Bringing Power Back to Survivors of Sexual Assault
State laws and legislation are starting to emerge which will enable the mother of the child who was conceived from sexual assault to not only cut the father out of the picture completely by terminating his parental rights, but also assert the right to cut the father’s family out, to prohibit the father to inherit from the child, and to decline child support from the father, among other actions.
Illinois’s Comprehensive Legislation of Survivors’ Rights
Illinois has been one of the states to spearhead significant reform with regards to the role of a father who sexually assaulted the mother of his child. On January 1, 2014, IL Public Act 098-0476 became effective and broadened existing Illinois law to provide extensive rights to the mother in the face of the assaulter’s rights. First and foremost, it provides that the mother-survivor no longer has to wait until there has been a conviction levied against her attacker; it provides that the protections may extend to someone who was found by clear and convincing evidence to have committed the non-consensual, sexual criminal act which led to the fathering of the child. In addition, the law also ensures that even if the parental rights of the father have been terminated as a result of the law, the father is still required to provide child support and maintenance, but the mother has the right to decline this support.
Another aspect of the law provides that the assaulter’s family does not have standing to assert a claim of rights with regards to the child. This extends to the assaulter’s parents, siblings, grandparents, or other relationship which may normally attempt to bring claim pursuant to the Illinois Marriage and Dissolution of Marriage Act.
Finally, the Act provides that the father is not entitled to any inheritance or other rights with regards to the child without the consent of the mother.
Reassertion and Reestablishment of Power: The Purpose Behind The Changes
The Illinois provision provides effective legislation which gives the mother an affirmative right to terminate the parental rights of the father who assaulted her. This legislation is extremely comprehensive and provides significant protection and power to a survivor of sexual assault who may feel that her rights and power were violated as a result of the sexual assault. The most important aspect for a survivor’s recovery is providing her the ability to reassert herself and reestablish her power, especially with regards to the child conceived as a result of such a horrendous act.
Experienced Family Law Attorneys in DuPage County
Whether you are a survivor of sexual assault or a parent looking to terminate another’s parental rights, it is important to speak with experienced family law attorneys at Mevorah Law Offices LLC to understand more the ramifications of these legal actions. Contact our experienced DuPage County family law attorneys today for a free and confidential consultation.
Legal and physical child custody generally hinges on the decisions of a court. A court will listen to both parents and the relationship that each has with his or her child in question, and will additionally balance a variety of family factors to determine what is in the best interest of the child.
The Best Interest of the Child in Illinois
The following are several factors that a court will weigh and assess in determining what type of custody arrangement is in the best interest of a child:
- The ideal arrangement for each parent;
- The ideal arrangement based on a child’s wishes;
- The relationship and interaction between and among a child, his/her siblings, each individual parent, and any other relative who interacts with the child;
- The extent in which the custody arrangement will alter a child’s daily routine or lifestyle;
- The extent in which the custody arrangement may impact the mental and physical health of a child;
- If there is any past abuse or misconduct (or threat of abuse or misconduct) between a child and a custodial/non-custodial parent.
Joint Child Custody
Joint child custody is considered, in the eyes of the state, the gold standard. If both parents can be involved, that is usually in the best interests of a child. Before granting joint child custody, a court does take into consideration the following factors:
- The ability of each parent to cooperate and agree on the best parenting plan for each child;
- The residential and financial lifestyle of each parent; and
- If there is any history of past abuse or misconduct which would make it dangerous for a child to be in contact with either parent or an acquaintance of either parent.
The Effect that Social Media Sites Have on Custody Arrangements
With the increased use of technology and social media, courts have been taking into consideration other factors: each parent’s presence and behavior on social media sites like Instagram and Facebook.
Recently, there have been quite a few cases where misconduct and certain behavior that a parent has exhibited on social media websites has seriously impacted the legal and physical custody arrangement previously made.
In one case, a parent tricked his ex-spouse into exchanging lewd and lascivious videos on Facebook (the eight-year-old child served as cameraman of the videos) and introduced the videos as evidence of neglect and abuse of the child. Ultimately, the endangering of the child on both the part of the ex-wife who requested her child to tape the videos, and the ex-husband who had tricked the wife into taping the videos in the first place, forced the court to revoke custody of the child from both the ex-spouses and place the child in custody with a third party.
In another case, one parent who had posted terrible things about her child on Facebook had that post used as evidence to revoke her custody rights. Clearly, social media is having a significantly negative impact on custody rights and the best interest of the child.
The Other New Factor: How Much of a “Helicopter-Parent” Are You?
So what has been found to help your custody case? Ultimately, showing evidence of being a “helicopter-parent” is extremely useful.
A “helicopter-parent” is a coined term for a parent who intensely hovers around his or her children and smothers his or her children with surveillance. A recent study has shown that judges are more likely to grant custody to parents who can show evidence of them being “obsessive, helicopter-parents.”
The following are qualities of a “helicopter-parent” in the eyes of the court:
- Parents who know the name of their child’s teachers or friends;
- Parents who attend classes with their child; and
- Parents who coach their child’s sport team.
Experienced Family Law Attorneys in DuPage County
These are just some of the newest factors taken into consideration in child custody cases. Child custody and the best interest of the child analysis is one that can be highly subjective and determined by a court. It is important to not only put your best evidence (and foot) forward, but also to have an experienced family law attorney by your side. The family law attorneys at Mevorah Law Offices LLC can help guide you through the child custody negotiations. Contact our DuPage County family law attorneys today for a free and confidential consultation.
With the status quo of “traditional” families being amended to include the increasingly more common combinations of families that are now present in American society, certain laws in Illinois are still championing the role of the “traditional” family. One of the most recent laws, which affects the rights of married and unmarried fathers and their relationships with their biological children, creates a double standard that espouses the married, but divorced father, over the rights of the unmarried, biological father.
Recent Case Designating the Double Standard
In a recent case, the Illinois Supreme Court reviewed the standard and burden of proof that would be applied to the biological father regarding his visitation rights with his biological child. In this case, a woman, who was married, had a one-night stand with another man. As a result, she became pregnant and gave birth to a child. The law creates a rebuttable presumption that any child that is begot from a marriage is the child of the husband. In this case, the husband, who was not the biological father, was presumed to be the biological father of the child and paternity was designated to him. The man from the affair, after seeing photos of the child posted onto a social media site, noted similarities between him and the child, and paternity was established between him and the child. The husband, who had been presumed to be the father of the child, later divorced the woman.
The biological father petitioned the court for visitation rights to the child. The standard for determining the rights of the biological father in the face of the husband who had been married to the woman has led to split court decisions, and had to be decided.
Illinois’s Visitation Rights Debate
Visitation rights of the biological father in Illinois have been the subject of a much heated debate in Illinois. Courts have been split on the issue of the type of burden of proof the biological father needs to show to establish visitation rights. Prior to this case, the majority of the decisions within the Appellate level pointed to the “serious endangerment” standard outlined in the Illinois Marriage and Dissolution of Marriage Act, which was applied equally to both married and unmarried, noncustodial parents.
The Serious Endangerment Standard
The serious endangerment standard stated that visitation rights are in the best interest of the child, except if there is evidence to suggest that visitation would seriously endanger the child. This language suggested that the court felt that visitation from a noncustodial parent, whether married or unmarried, was a right, and not a privilege. The new standard outlined in this most recent case finds that visitation is a privilege and not a right.
The recent case creates a double standard whereby the standard is laxer for those noncustodial parents who were married to the custodial parents. Married, noncustodial parents enjoy the rights of visitation in the face of evidence to suggest serious endangerment of the child, whereas unmarried, noncustodial parents must show that visitation rights are in the best interest of the child. This thereby shows the Illinois courts’ preference for the married, nuclear family in the face of less traditional forms of family.
The “Best Interest of the Child” Standard
The “best interest of the child” analysis weighs factors to assess how a judgment, like visitation rights, will affect the child in question. The analysis looks at the wishes of the custodial parent, the wishes of the child, the past and future relationship between the child and the noncustodial parent, the mental and physical health of the individuals involved, and the presence or absence of past abuse, among other considerations.
Experienced Family Law Attorneys in DuPage County
The new double standard is not as easy to apply as one would think. If you or a loved one is going through a visitation rights dispute, it is important to request guidance from an experienced DuPage County family law attorney at Mevorah Law Offices LLC. The attorneys at Mevorah Law Offices LLC are experienced in matters relating to divorce settlements, child custody, and maintenance, and additional family law matters. Contact us today to schedule your confidential consultation.