In the 25 years since the custody act has been written, there has been much discussion among family lawyers about why the custody act is in need of overhaul. In the interim, a great many changes in our society have taken place, such as greater mobility, the advent of the computer age, the acceptance of alternative lifestyles, children residing other than with their biological parents, and an increase in single-parent birth and households. Each of these changes has had a profound impact on our children. Books have been written not only on the impact of divorce on children, but also on the long-term effects on their relationships into adulthood.

The Family Law Section Council has worked for more than two years investigating both statutory and case law. We have read the books, reviewed statutes from other states, researched the analysis and recommendations of the American Law Institute and relied on our own experiences in this area to craft legislation that puts the emphasis where it belongs, on the children.

First, we started with defining the goals. Our goals were simple: keep the children's stability as our primary goal throughout the process by getting the parents to consider the children first, and reducing the long-term damage to the kids.

If the ultimate goal is to remain the best interests and stability of the children, we need laws that are "kindercentric" or centered on the children and their needs as opposed to centered on parents' needs or even rights. The American Law Institute (ALI) suggested expanding standing to virtually everyone to promote children's best interests. We did not believe that drastic of a change was neither necessitated, nor realistically acceptable in Illinois at this time. One of the key components that make our proposal different from the ALI model is that all decision-making authority remains with the parents. The only new right granted to nontraditional, non-legal parents is parenting time, which would be established via the parents' decision and perpetuated by the parents themselves long before dissolution ever took root, thus leaving in the child's life those with whom that child has built a bond and is reliant upon.

The bottom line is no child asks to be born. They have no control over the life-changing decisions their parents ultimately make. Children are not in the position to be the decision-makers and they should not have to divide their loyalties because their parents get divorced. What is important is that we try to leave the child as untouched by the process as possible.

To begin the analysis, the first question must be: what is a parent? A parent, legally defined, is either biological or adoptive. However, if you look at a dictionary definition of a parent it says a mother or father. When you research the definition of a mother or father, the definition is not limited to a biological parent or adoptive parent but expands to someone who nurtures as a mother or acts as a father. Doesn't it stand to reason that a child would have this exact view of a person who assumes the responsibility for their well-being and spends time with them? In that same vein, if a person is in a child's life performing the role of parent and that child has come to rely and depend upon that person, do we banish them because of a parental split? That is what we do now and it is bad for kids. What effect, long- and short-term, does that have on that child? This is not to say that every person who in some way has formed a relationship with a child should be given an opportunity to litigate. This proposal provides very specific and stringent requirements before a party can legitimately walk through that courthouse door.

One of the key ideas is to try to balance each person's rights. We need to look at the willingness and ability of parties to place the needs of the child above their own. Each person's wishes, the wishes of a child who is mature enough to express a reasoned preference and the past history of caretaking within the family must all be considered. Who was involved in the child's life? How involved were they? What was the character of their involvement? What decisions were made and have been in place over an extended period? Who made those decisions? We also should look at the interaction and interrelationship of the child with involved parties: the child's adjustment to home, school and community; the child's needs in light of economic, physical or other circumstances, including distances between the parties' residences; cost and difficulty of transporting the child; schedules of all persons involved; ability to cooperate; the threat of abuse, neglect or domestic violence, past or present; and given the circumstances, whether restrictions are necessary. This is not an all-inclusive list and the court should retain the discretion to consider any other relevant issues. Some things in a child's life will necessarily have to change and others absolutely do not. The less parental decision is allowed to upset the child's world, the more stable the child's life will remain.

We have also divided the amount of time a child spends with a parent. We now put kids in the horrible position of deciding do I want to play soccer or do I want to spend time with my parent? As an example, the parents have had Jimmy in soccer for five years. They divorce. Dad or Mom moves 20 miles away. Jimmy really wants to stay on his team where he has played for the last five years. Mom or Dad doesn't really want to drive 20 miles each way. They don't want to give up "their time" with Jimmy. Does Jimmy pay the price if it's feasible for one or the other to drive? Does Jimmy drop off the team because his practices or games are during one of the parent's prescribed times with him? How do those decisions affect not only Jimmy, but also his relationships with each of his parents? This is only one easy example of the myriad of issues that occur in a dissolution setting. What this legislation would do is to procedurally force the parties to look at their decision-making and parenting time with the child through the child's eyes first. The children will no longer be stuck in the middle of the controversy.

Let's face some real facts. Custody is a loaded word. Practitioners know that in reality, what custody means is making decisions. Visitation is a loaded word. Practitioners know that parents do not visit their children; they parent their children during the time the kids are in their care. How many times have people walked into your office and said," I don't have to tell my ex about the school play, I am the sole custodian." Wrong!

Parents have rights and responsibilities; kids have or should have rights and responsibilities. Parents are and should be the ultimate decision makers in their children's lives and depending on the history of their family, those decisions should be allocated to maintain the status quo of what that child has been living, counting and planning upon.

Time spent with the most important people in a child's life is critical to their emotional and mental well-being. Does rearranging a child's life without a thought as to the effect on that child amount to best interests? We submit it does not. If the legal community can draft laws that shift the paradigm and place the emphasis on the child, while accommodating the rights of all concerned, that would serve children.

And what of parents who demand their rights, demand specific time with that child and once the ink is dry, show up occasionally or not at all, leaving a kid standing by a window waiting only to be disappointed by their absence? What are the real financial consequences to the other parent of shouldering the majority of the expense because the other parent does not show up, let alone the impact on the child? This proposal addresses those issues as well. What about parents who spend their time figuring out how they can best keep the child from the other parent? We also address those issues.

Our proposal seeks to have the parents address the children's issues first. It forces them to come up with a parenting plan of their own making which fits their family and the child's interests. It utilizes mediation as a tool to resolve disputes. There will always be those who cannot or will not step up to the plate for their kids. There is no magic bullet to solve every problem or resolve every post-decree issue. For those who cannot, the court will. It is our hope that if this proposal is accepted and made into law, the children going through the process will grow up healthier because of it.