When is a 50/50 Parenting Plan in the Best Interests of the Child?

As Chicago family law attorneys, we are often asked by clients if a 50/50 parenting plan is possible for children following a divorce. Recently, the Appellate Court reversed a trial court’s ruling giving the parents a 50/50 schedule in the case In re Marriage of Rachael Virgin and Justin Virgin [2021 IL App (3d) 190650]. The case is an interesting read because one justice dissented from the ruling and the pros and cons of a 50/50 parenting plan are discussed in great detail.

Case Background

Parents Were Given Equal Parenting Time

Rachael was allocated the majority of the parenting time (she was given more overnights than Justin was), but the custody judgment stated that Justin was the custodial parent with the majority of the parenting time for purposes of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/606.10 (West 2016)). The judgment was clear that the parties had equal parenting time.

Father files for a Modification of the Parenting Schedule

The Court Appoints a Guardian Ad Litem for the Child

Guardian Ad Litem Testifies on Best Interest of the Child

The GAL also recommended a change in the minor’s parenting schedule. Although the GAL found Justin to be aggressive and often times did not act appropriately toward Rachael, Justin was the parent that was able to provide a better atmosphere for the minor’s sleep habits and the parent coordinating with the doctors and school. A recommendation was made that the minor spend most of the week with Justin and then transfer over to Rachael’s house over the weekend.

The Family Court’s Ruling

For Rachael’s petition to hold Justin in contempt, the court granted that motion. Neither party was happy with the court’s ruling and an appeal followed.

The Case Appeal

Justin argued that the court’s order of 50/50 joint parenting time was against the manifest weight of the evidence. Justin stated that he recognized that a 50/50 parenting arrangement can be appropriate, but in this case, a 50/50 arrangement was not in the best interest of their child.

Did the Parties’ Animosity Toward Each Other Cause the Court to Award a 50/50 Parenting Schedule?

In this case, the court continued to name Justin as the custodial parent but established a truer 50/50 schedule where the child would move between Justin and Rachael’s homes midweek and every other weekend. Under the circumstances presented, the reviewing court found that the alternating schedule was not in the minor’s best interest.

The appellate court that the evidence presented showed that the parties had too much animosity to sufficiently cooperate with each other. The GAL testified that this case presented one of the highest conflict cases he had ever seen in his experience as a GAL and attorney. The GAL also described the parties’ communication as unproductive, which is clearly supported by the record. While the court believed that both Justin and Rachael parented well, it acknowledged that they did not co-parent well.

Additionally, the Appellate court found that the alternating schedule failed to address the minor’s needs and health. The minor child suffered from anxiety, asthma, and upper respiratory issues. There were struggles and conflicts between his parents, and the child had behavioral problems as well as sleep issues. The reviewing court agreed with the GAL’s recommendation. The Appellate court reversed the trial court’s order regarding the regular parenting schedule and remanded the case back to the trial court to provide Justin with the majority of the parenting time.

The dissent

Not all the justices agreed that the trial court’s ruling should be reversed. Justice Lytton disagreed with the reversal of the parenting time. He cited multiple cases which demonstrated that equal parenting time is generally not a good idea for the kids, but in certain cases, it is necessary. For instance, in the case of Divelbiss, 308 Ill.App.3d 198 (1999), the father was given five months out of the year due to the mother’s alienating behavior. Further, if the parenting plan is designed to maximize the involvement of both parents, then a 50/50 parenting plan should be encouraged.

THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/when-is-a-50-50-parenting-plan-in-the-best-interests-of-the-child/

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