Legislation Addressing Child Custody and Child Support Challenges of Noncustodial Parents

Cordell & Cordell CEO, Managing/Executive Partner Scott Trout contributed the following op-ed published in the American Bar Association’s GPSolo eReport:

Following a divorce, noncustodial parents can face significant challenges both in meeting child support obligations and in adjusting to restrictive parenting time schedules. These challenges are known to parents across the country, and in recent years several states have begun considering legislation to more realistically appraise child support obligations and to create greater equity in parenting time between former spouses.

Two bills introduced recently in the Illinois State House of Representatives—HB4113 and HB5811—are instructive examples of these legislative efforts.

HB4113

In 2017, Illinois State Representative La Shawn K. Ford (D-Chicago) introduced a bill, HB4113, in the Illinois State House of Representatives. HB4113 recognizes that the involvement of each parent for equal time is presumptively in the child’s best interests, and it deletes the language in the Illinois Marriage and Dissolution of Marriage Act specifying that nothing in the Act requires each parent to be allocated decision-making responsibilities.

HB4113 also states that the court should not place any restrictions on parenting time unless it finds clear and convincing evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.

In those circumstances, HB4113 requires the court to issue a written decision stating its specific findings of fact and conclusions of law supporting this ruling. This would provide the court with the ability to restrict or modify parental responsibilities.

HB4113 allows a parent, in the absence of a proven reason to restrict parental access or responsibilities, to operate under the presumption of equal parenting time, benefiting both parent and child.

By creating this presumption, HB4113 would protect children from abuse situations without punishing parents, who simply want a place in their child’s life.

Unfortunately, the legislation was put in session sine die on January 8, 2019, after being sponsored by 11 state representatives and supported by the Illinois Fathers for Equality and Dads Can Too organizations.

HB4113 is not the only legislative pursuit for the rights of noncustodial parents, however. During the last few years, legislative bodies in states including Colorado, Maine, Texas, and Utah have taken their support of equal parenting rights to the next level through either passing or considering bills. Notably, Illinois Representative Ford also filed HB5811 on July 14, 2020, in continued support of this effort.

HB5811

HB5811 would amend the Illinois Code of Civil procedure and deletes language providing that the interest on child support orders be calculated by applying one-twelfth of the current statutory interest rate, as provided in the Code, to the unpaid child support balance as of the end of each calendar month.

As currently constructed, the Code imposes a 9 percent interest rate on every judgment arising by operation of law from a child support order, according to the Chicago Daily Law Bulletin.

With a decrease in interest imposed on the child support judgments, a paying parent would be able to provide for a child without being driven into poverty by the obligation.

Relieving the financial burden on paying parents could also help relieve the emotional challenges and stigma they face when they must request child support modification. Often, it is assumed that they do not love their child to the extent they once did or that they do not want to provide for the child. Ultimately, the issue is one of trust, and when the paying parent calls a child support amount into question, the mistrust that each parent may feel for the other is brought to the forefront. Their child is caught in the crossfire of the ensuing conflict.

The reality of the situation is that the paying parent may not have the funds to support both a life for themselves and a life for their ex-spouse and child. By pursuing child support modification, paying parents are attempting to ensure that they can be effective parents to their child; a child support obligation that sends them into poverty hinders a paying parent from acting as a parent.

Legislative efforts such as HB5811 can help protect a parent’s place and future in their child’s life. Unfortunately, HB5811 was put in session sine die on January 13, 2021.

Nevertheless, the fight is ongoing.

Protecting the Rights of Noncustodial Parents

Since 2014, the National Parents Organization has released a Shared Parenting Report Card grading states according to “the degree to which state legislatures have absorbed and acted on the scientific consensus on the benefits of shared parenting.” The number of states (and the District of Columbia) that received a grade of C or better rose from 26 in the initial report card (2014) to 34 in the most recent (2019). Unfortunately, 17 states still received a grade of D or F.

While noncustodial parents or paying parents are still battling for more balanced laws to be enacted, their journey to justice is headed in the right direction as lawmakers across the nation continue to fight for their rights.