In an Illinois divorce, you can lose a lot. You can lose your assets and you can lose time with your kids. In the end, you can make more money but you can’t get back time with your kids. For most parents, the most parenting time they can ever hope for is a 50/50 joint custody arrangement with the other parent. So, how do you get a 50/50 joint custody order in Illinois divorce?
50/50 custody is not the default in Illinois but it can be achieved. “[C]ourts have traditionally viewed 50/50 joint parenting time with caution” and “[i]n cases where the evidence clearly showed that parents had too much animosity to be able to cooperate, 50/50 arrangements have been set aside.” In re Marriage of Virgin, 2021 IL App (3d) 190650
Understanding Custody In An Illinois Divorce.
There is no custody in Illinois. At least not since when the Illinois legislature changed the law to eliminate the word “custody.”
The Illinois legislature did the right thing, the word “custody” is simply too charged with meaning in our society. There is almost no greater taboo in America than for a woman to “not have custody” of her kids. This leads to an all-or-nothing confrontation between moms and dads when it comes spending time with their children as both parties want “custody.”
In lieu of custody, we now have the twin concepts of “parenting time” and “decision-making responsibility”
Parenting time is the parenting schedule, who has what time with what child.
Decision-making responsibility is who gets to make what decisions for the children.
Both of these matters, if not agreed, are decided by the Illinois family law court based on the “best interests of the child.”
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)
“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)
It’s all well and good to have a specific schedule with your children and to make specified decisions for your children. But, kids are kids. Things will change dramatically and sometimes the spirit of the final agreement is more important than parsing out each parent’s individual responsibilities. Often, you just want to know that, no matter what happens, you’re going to effectively have 50/50 joint custody.
I think this is a fine goal and I suggest you read below how to get 50/50 joint custody in an Illinois divorce.
Propose An Agreed Allocation of Parenting Time and Parenting Responsibilities
“If you don’t ask, you don’t get”
– My Mother
Just have your divorce attorney draw up and submit an Agreed Allocation Of Parenting Time and Parenting Responsibilities. You don’t have to mention that you are asking for joint 50/50 custody, just make sure that’s what your proposed agreement adds up to.
I start every single divorce this way, I ask my client to make a wish list and I prepare the final documents to reflect that wish list. The opposing party will often agree with little or no changes. If there are changes, well, at least you know what you’re agreed on and what you’re fighting about.
In fact, you’re required by statute to propose a parenting plan within 120 days. So, you might as well do it right away.
“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)
Joint Decision-Making Responsibilities In An Illinois Divorce
When your children are with you, you’ll be making decisions for them on a minute-by-minute basis. It’s only the big four factors that require joint-decision making: Education, Health, Religion, and Extracurricular Activities.
Even if you gave all the decision making to your children’s other parent, you could still go back to court if that parent made a decision that was not “in the best interests of the children.”
For effectively equal decision-making you’ll want to include the following language that I always include in my proposed parenting plans.
“Significant decisions: The parties agree that each is a fit and proper person to participate in the care and control of the minor child and believe and agree it is in the best interests of the minor child that they allocate significant decision-making for the minor child as follows:
- Education: With respect to the choice of school enrollment, special educational services and therapies, through choice of any post-secondary education, and for all other tutoring and educational needs, the parties agree that they will share the decision-making power for the minor child. Prior to making a major decision regarding the education of the minor child, the parties agree to inform one another in a timely manner of what decision(s) need to be made, communicate with one another about the final major decision, and come to a mutually agreed upon decision.
- Health: With respect to all decisions relating to the medical, dental, and psychological needs of the minor child and to the treatments arising or resulting from those needs, the parties agree that they will share the decision-making power for the minor child. Prior to making a major decision regarding the health of the minor child, the parties agree to inform one another in a timely manner of what decision(s) need to be made, communicate with one another about the final major decision, and come to a mutually agreed upon decision. In the event of an emergency, either party may make the decision regarding the health of the minor child. The party making the emergency decision shall notify the other party as soon as practical. Non-routine procedures (including appointments for treatment and testing) for the minor child shall be scheduled at a time and date when both parties can attend, unless otherwise agreed by the parties. ________and ________ shall jointly coordinate the scheduling of said appointments. Both parties shall have the right to seek a second opinion from another healthcare provider, at his or her sole cost upon advance notice to the other parent. The minor child will remain on _________insurance plan and _________ will acquire an individual insurance plan.
- Religion: With respect to the minor child’s religious practices and education, the parties agree that they will share the decision-making power for the minor child and make all significant decisions regarding religion. Prior to making a major decision regarding the religion of the minor child, the parties agree to inform one another in a timely manner of what decision(s) need to be made, communicate with one another about the final major decision, and come to a mutually agreed upon decision. ____________ and ___________ shall cooperate in ensuring the child attend any scheduled religious events that may occur during his/her parenting time.
- Extracurricular Activities: With respect to the minor child’s enrollment and participation in extracurricular activities the parties agree that they will share the decision-making power for the minor child. Prior to making a major decision regarding the extracurricular activities of the minor child, the parties agree to inform one another in a timely manner of what decision(s) need to be made, communicate with one another about the final major decision, and come to a mutually agreed upon decision. The parties shall each be notified of all practices, classes, events, games and ceremonies. ____________ and ___________ shall cooperate in ensuring the child attend any all scheduled practices, classes, events, games, and ceremonies that may occur during his/her parenting time.”
The key to making joint parenting decisions…is to cooperate and make joint parenting decisions. “[P]arties [must demonstrate] the extraordinary level of cooperation required for a joint parenting arrangement.” In re Marriage of Perez, 2015 IL App (3d) 140876
Equal Parenting Time Schedules In An Illinois Divorce or Parenting Action
There are several different schedules that allow for equal parenting time in divorce. I’ll dicuss each schedule and it’s merits.
1 day on/1 day off: Each parent gets a day and then transfers the child that night or the next morning. This only seems to work with babies. Otherwise, it’s just two much moving around. Also, there are an odd number of days in the week (7) so every week will be different. This ends up being a logistical nightmare which is feasible only for the self-employed or unemployed.
3/4/4/3: This is a parent taking a child for the first three days of the week and the other parent taking the child for the next four days. Then the subsequent week, that parent takes the child for 4 days and the other parent takes the child for 3 days. There is essentially one day that toggles on and off for each parent each week. That day is usually Sunday.
This is good for older kids and preteens. It’s enough time but doesn’t allow for much travel.
5/5/2/2: This schedule is probably the most practical but it is difficult to understand at first blush. One parent gets the weekend and Monday, Tuesday. The next parent gets Wednesday, Thursday and the subsequent weekend (including Friday). Then the next week, the first parent just gets Monday and Tuesday. The other parent gets Wednesday and Thursday. Then it all starts all over again.
This seems to work for a LOT of people. It gives big chunks of time with your kids and small two day parenting time period. This works great for kids of all ages because it combines short and long parenting times.
Week On/Week Off: This is as simple as it sounds. One parent gets the first week. The next parent gets the next week.
This works for teenagers of parents who live close together. 7 days is a long time for your kids to be away from one parent and all of their friends.
What If You Can’t Agree on 50/50 Joint Custody in An Illinois Divorce or Parenting Action?
If your spouse or other parent doesn’t just automatically agree to an equal 50/50 parenting time and decision-making allocation, you have lots of other chances to get to your goal: Joint shared custody.
Your next “bite at the apple” is mediation.
“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.” 750 ILCS 5/602.10(c)
Mediation is mandatory for all parenting issues you cannot come to an agreement on.
Mediation is relatively affordable for a legal procedure. It can be free or at a reduced rate if you mediate through the Cook County provided Family Mediation Services. Otherwise it can be $ 1500 a day for mediation with a private mediator. This is much cheaper than two divorce lawyers arguing in front of a judge for just an hour or two (not including preparation time)
The cost of Illinois divorce or parentage mediation “shall be borne by the parties and may be assessed by the court as it deems equitable without prejudice and are subject to reallocation at the conclusion of the case.” 750 ILCS 5/501(e). So, an Illinois court will use marital assets to pay for mediation in a divorce and look at your incomes if you’re not married to divide the cost proportionally.
Just tell the mediator, “I want 50/50” and don’t budge from that. 50/50 parenting time not an unreasonable position and the mediator will work towards that.
The mediator doesn’t care about “what is right.” The mediation is there to get a settlement. The mediator will try to move your spouse or other parent closer to 50/50 in the hopes of some kind of settlement.
If you don’t settle, no big deal. Your spouse or other parent will have spent a full day realizing that you have a strict negotiating stance.
When mediation fails, the court almost always appoints a guardian ad litem to investigate the situation.
How To Get A Guardian Ad Litem To Recommend 50/50 Joint Custody In An Illinois Divorce or Parentage Case
A “guardian ad litem” is a Latin term for a lawyer who represents the best interests of the children.
“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506
“Who should spend time with the children?” is not a black and white question. Both parents have their own work schedules and capacity to care for the children. The children have their own school schedules and special needs. If one parent doesn’t agree to 50/50 joint custody, then they must have some kind of articulable reason for that opinion. The guardian ad litem investigates the myriad of facts that make up a child’s schedule, needs and best interests. The guardian ad litem then prepares a report based on those facts to the Illinois family law court judge…who almost always adopts the report as a court order.
So, the first thing you need to know about a guardian ad litem in a custody case in Illinois is that the guardian ad litem is really deciding your schedule with the children. Because of this, you have to go on a charm offensive.
When the guardian ad litem interviews you, you need to be dressed like you’re going to church and act like you’ve gone to church every Sunday for your whole life.
When the guardian ad litem asks you what schedule you’re looking for. You need to say 50/50 and propose one of the schedules I outlined above: Day-on/Day-off, 3/4/4/3, 5/2/2/5 or Week-on/Week-off.
Stay firm with the guardian ad litem that you are willing to do whatever it takes to get a 50/50 joint custody schedule. Then, specifically ask the guardian ad litem “WHAT WILL IT TAKE FOR ME TO GET 50/50 JOINT CUSTODY.” Don’t let the guardian ad litem leave until he or she tells you what it will take to get 50/50 joint custody.
Tell your lawyer what the guardian ad litem told you were the benchmarks for 50/50 joint custody in their opinion.
Your lawyer should follow up with the guardian ad litem with an email confirming the benchmarks.
After you achieve each benchmark, for example: see a therapist, your lawyer should follow up with the guardian ad litem that the benchmark has been achieved.
If you do everything the guardian ad litem recommends, the guardian ad litem will recommend 50/50 joint custody. The guardian ad litem has to issue a report that is based on facts and you are giving the guardian ad litem the necessary facts to provide in the report.
“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.” 750 ILCS 5/506
If, for some reason, the guardian ad litem does not recommend joint custody, you can use those confirmation emails in court to prove that you, in fact, did exactly what the guardian ad litem asked.
You can even put the guardian ad litem on the stand in a trial and present them with the confirmation emails. But, if the guardian ad litem is getting and acknowledging those confirmation emails, they will know exactly what you will do if they do not adopt the recommendation they promised…so they will adopt it.
Going To Trial To Get Joint 50/50 Custody In An Illinois Divorce or Parentage Action
If the guardian ad litem won’t recommend joint 50/50 custody and you haven’t gotten the guardian ad litem to previously commit to recommending joint 50/50 custody after you accomplished a series of goals…then I have some bad news: You are not getting joint 50/50 custody today.
A judge can still make the final decision and overrule the guardian ad litem’s report but it’s simply not worth the expensive litigation battle that a trial requires.
Take what you can get (it’s probably very close to 50/50 joint custody) and focus on what the actual objection to 50/50 joint custody is from the guardian ad litem (they will have told you).
Make sure the judge orders or the parties agree that a clause be included in the final Agreed Allocation of Parenting Time and Parenting Responsibilities that will allow for 50/50 joint custody if certain conditions are met. In fact, this is required by statute but your ex won’t include it unless you insist on it.
“Parenting plan contents. At a minimum, a parenting plan must set forth the following:
Provisions for modifications of the parenting plan, if specified events occur” 750 ILCS 5/602.7(d)
Prepare yourself for a motion to modify parenting time in the near future when those “specific events occur” in order to get 50/50 joint custody.
Modifying Parenting Time In An Illinois Divorce Or Parentage Action.
If you get an agreed allocation of parenting time and parenting responsibilities entered and you’re shy of 50/50 joint custody, you can always go back to court and ask for more time.
The Illinois statute says you should wait two years BUT ONLY IF YOUR TRYING TO CHANGE DECISION-MAKING.
“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date.” 750 ILCS 5/610(a)
You can come to court anytime to change parenting time…you just have to show a “changed circumstance”
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)
If you have achieved the goals laid out in the parenting plan which were necessary for a change to 50/50 joint custody, the Illinois family law court must grant you 50/50 joint custody.
“The court shall modify a parenting plan or allocation judgment in accordance with a parental agreement, unless it finds that the modification is not in the child’s best interests.” 750 ILCS 5/610.5(a)
The guardian ad litem will likely be re-appointed on your case to make recommendations again based on the alleged changed circumstances.
But, be careful. If your alleged change of circumstances is deemed not sufficient to warrant a change in parenting time, you could be responsible for the other parent’s attorney’s fees and even banned from returning to court.
“Attorney’s fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious or constitutes harassment. If the court finds that a parent has repeatedly filed frivolous motions for modification, the court may bar the parent from filing a motion for modification for a period of time.” 750 ILCS 5/610.5(a)
Bringing Up The Other Parent’s Behavior When Trying To Get 50/50 Joint Custody.
In this entire article, I have put the focus on you, the parent who wants 50/50 joint custody and not on the other parent who is denying you 50/50 joint custody.
It may be tempting to try to get more parenting time for yourself by arguing that the other parent should get less parenting time.
Trash-talking the other parent always becomes an annoying distraction at best and a counter-productive argument that works against you at worst.
Courts don’t care about a parent’s character unless the parent is doing crazy things in front of and with the children.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
Your arguments against the other parent will eventually be used as an argument against you having more time with the child.
One of the factors courts consider in awarding time with a child to a parent is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” 750 ILCS 5/602.7(b)(13)
If you are not willing, the court will not find you able. The phrase “kill ‘em with kindness” goes a long way in a custody battle.
If the level of enmity between the two parents is high, there is a small chance you could get the court to order a parallel parenting agreement. In parallel parenting both parents share custody even though they can’t communicate or agree on anything. The parallel parenting option is rare because if either parent shows a willingness to communicate, they will be rewarded with more parenting time.
A Backdoor To More Parenting Time: The Right Of First Refusal
You can put a “right of first refusal” clause in your final agreed allocation of parenting time and parenting responsibilities which allows you to have your child if the other parent is not able to be present with your child.
You can also ask the Illinois family law court, directly for a right of first refual. “[T]he court may consider, consistent with the best interests of the child…whether to award to one or both of the parties the right of first refusal to provide child care for the minor child or children during the other parent’s normal parenting time, unless the need for child care is attributable to an emergency.” 750 ILCS 5/602.3
If the other parents works a lot and puts the child in daycare or leaves the child with a relative, you can exercise more time with your children and even use that extra time as a basis to ask for more time on a regular basis. You can ask for a modification if “the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification” 750 ILCS 610.5(e)(1)
Joint Custody In Illinois and Child Support
Child support in Illinois is calculated by comparing the two parents’ incomes.
If both parents have more than 146 overnights with the child (that’s a 60/40 split) then the child support is reduced by around half per the calculation.
“Shared physical care. If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation.” 750 ILCS 5/505(a)(3.8)
If the parents’ incomes are even remotely similar, it makes more sense to just waive child support and split the children’s expenses 50/50.
If one parent is the primary parent already, 50/50 joint custody can only be achieve via careful strategy. Illinois law is biased against 50/50 custody if there is an uncooperative parent. “A 50/50 arrangement is not a substitute for making a difficult choice between two good parents, especially where such an arrangement may add to the insecurity, which is frequently experienced by children of divorce.” In re Marriage of Virgin, 2021 IL App (3d) 190650, ¶ 52.
If you’d like to learn more about strategies to get 50/50 joint custody in an Illinois divorce or parentage action, call my Chicago family law firm to arrange a free consultation with an experienced Chicago divorce lawyer.