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Illinois Courts Cannot Discriminate Against Parents for Legal Marijuana UseA child’s safety with a parent is one of the factors that a family court will consider when allocating parental responsibilities during a divorce or separation. The Illinois Department of Children and Family Services will also consider this when determining whether to let someone adopt a child or become their legal guardian. Illegal drug use in the home is a red flag that a parent may be irresponsible and creating a dangerous environment for a child. However, some of the assumptions on drug use will change starting in 2020, when Illinois officially legalizes the recreational use of marijuana.

No Discrimination Against Legal Users

The "Illinois Cannabis and Tax Act" includes a section that is titled “Discrimination prohibited.” The section states that the lawful use of marijuana under this act cannot be the “sole or primary basis or supporting basis” for limiting someone’s rights as a parent or right to adopt or become a guardian of a child. This means a court cannot reduce your parenting time or decision making responsibilities based on your co-parent complaining that you use recreational marijuana, as long as you use it in a legal and responsible manner. Likewise, the Illinois DCFS cannot cite your legal marijuana use as a reason for denying your adoption request.

Irresponsible Use

As with other legal drugs, marijuana use will still impact your parental fitness if you are irresponsible with it. A court may decide that your marijuana use is a danger to your children if:

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How a Criminal Case Could Affect Your Parental ResponsibilitiesAn ongoing criminal case or past criminal conviction can be an important factor when determining how parental responsibilities should be allocated between parents in a divorce. A criminal charge may cause a court to doubt whether you can be a responsible parent and provide a safe environment for your children. However, the details of your criminal case will determine how much weight the family court will give it in your parenting case. Here are three relevant questions about your criminal case in relation to your parental responsibilities:

  1. What Is the Nature of the Criminal Charge?: Violent criminal charges cause the greatest concern about your children’s safety. Domestic violence or abuse charges, in particular, suggest that you may be violent towards your children if left alone with them. Crimes based on poor decisions, such as driving under the influence or drug possession, also reflect badly on your ability to be a responsible parent. A court may strictly limit your parenting time until you can demonstrate that you are not a threat to your children, which may require counseling and parenting classes.
  2. Is the Case Ongoing?: An active criminal case could be good news or bad news for your parenting case. If the case ends without you being convicted, your criminal charge may have a minimal effect on your parental responsibilities. However, the family court has the discretion to hold the fact that you were charged against you if you got off on a technicality or demonstrated poor judgment by putting yourself in the situation that led to your arrest. An ongoing criminal case also casts doubt on your future availability as a parent if a jail sentence is a possibility or you may lose your driving privileges as a result of your conviction.
  3. How Long Ago Was the Conviction?: If you have a criminal conviction on your record, your spouse may present this information to the court as a reason to limit your parental responsibilities. However, you may be able to downplay a previous conviction if it occurred a long time ago and you have demonstrated good behavior since then. A one-time mistake may not hurt you much if you can explain what you learned from the incident and why you will not repeat that mistake.

Contact a St. Charles Divorce Lawyer

A divorce court will presume that you have an equal right to parental responsibilities unless there is evidence that it would be against your children’s best interests. A Kane County divorce attorney at Goostree Law Group will work with you to ensure that you receive an appropriate amount of time with your children. To schedule a free consultation, call 630-584-4800.

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Posted on in Child Custody

Using Provisions to Strengthen Your Parenting PlanYour parenting agreement is the document that determines your rights and responsibilities as a co-parent, such as when the children will be with each parent and who has the authority to make parenting decisions. However, there are many other aspects of parenting that co-parents need to agree on. Adding provisions to your parenting agreement can clarify how you will raise your children and how you will make decisions with your co-parent.

What Are Provisions?

Provisions refer to the terms of a parenting plan that address decision-making responsibilities and parenting time schedules. It is best to wait until you have completed the basic structure of your parenting plan before you start adding additional provisions. Provisions in a parenting agreement are helpful because they can create:

  • Guidelines for how you will raise your children, which creates more consistency between the two homes
  • A system for when and how you will communicate with your co-parent
  • A process for making temporary adjustments to the parenting agreement when circumstances require it

Examples of Provisions

The provisions in your parenting plan can be as specific as you want, as long as they do not violate state parenting laws. Common examples of provisions include:

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Why Parental Alienation Is Controversial in Family LawWhen arguing over the allocation of parental responsibilities, one parent may accuse the other of creating parental alienation. The concept, which is sometimes called parental alienation syndrome, is that one parent is encouraging the children to not have a relationship with the other parent for reasons that are illogical or selfish. Parental alienation can be viewed as a form of child abuse, and some parents have used the claim to gain greater or complete responsibility for the children. However, parental alienation is a controversial subject because an abusive parent could use it to gain access to their children.

Potential for Abuse

The professional psychology community is divided on parental alienation syndrome, including:

  • Whether it is a psychological condition:
  • How it can be identified and proven; and
  • How prevalent it is in parenting relationships.

These doubts lead some to believe that parental alienation should not be a major consideration in family courts. Parental alienation has helped decide parental responsibilities in real cases. In some cases, allegedly abusive parents have gained full child custody by accusing the other parent of unreasonably withholding the children. Critics of parental alienation claim that abusive parents are taking advantage of the concept to control their children and punish their co-parents.

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Why Parenting Time Is Different from VisitationThe terms “parenting time” and “visitation” are sometimes loosely interchanged with each other when discussing the allocation of parental responsibilities after a divorce or separation. When the children spend the majority of their time with one parent, the other parent may feel like they are seeing the children only during weekend visits. However, visitation is different from parenting time, both in legal definition and concept. Saying that your children visit you is demeaning to your relationship with them.

Legal Meaning

Illinois revised its Marriage and Dissolution of Marriage Act to replace the words “child custody” with “the allocation of parental responsibilities.” Parental responsibilities are made up of:

  • Decision-making, which is the right to decide important issues regarding the children; and 
  • Parenting time, which is the regularly scheduled time in which a parent is responsible for caring for the children.

The written agreement that divides these parental responsibilities is called the parenting plan. There is a separate section in the law for visitation, which is defined as the time spent between a child and a nonparent, such as a grandparent, stepparent, sibling, or other designated parties. Nonparents can petition for visitation with a child if they can prove that it is in the best interest of the child or the parent has unreasonably denied them visits.

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