Sole Custody in an Illinois Divorce or Parentage Action
There are lots of kinds of custody in Illinois. Sole custody implies that the child or children spend all of their time with one parent and the other parent has no say in how the child or children are raised. Maybe this is a good idea for your children, maybe it’s not. Either way, sole custody is an extremely loaded term that needs to be properly understood as it relates to Illinois custody law. So, what is sole custody in an Illinois divorce or parentage action?
There Really Isn’t Any Child Custody In Illinois Anymore
In 2016, the Illinois legislature struck the word “custody” from the Illinois statutes. The logic behind getting rid of the word “custody” is that having one singular concept for who gets the kid turns custody…into a battle. Realistically, custody can be broken down into a bunch of individual parts which can be allocated to each parent instead of applying custody as an all-or-nothing concept.
In lieu of the term “custody,” Illinois now uses the twin concepts of 1) Parenting Time and 2) Parenting Responsibilities.
“Parenting Time” is the children’s schedule. So, sole custody would be the children spending all of their time with one parent.
“Parenting Responsibilities” is who makes the decisions for the children. Parents who can communicate effectively about their children usually share parenting decision-making. Parents who cannot communicate with each other about their children must be assigned aspects of the children’s lives that they will EACH be responsible for. The Illinois statute outlines four areas of responsibility 1) education, 2) health, 3) religion and 4) extracurricular activities. 750 ILCS 5/602.5(a)
If the parties cannot agree to sole custody (no one ever agrees to sole custody, they either fight for time and decisions or they simply disappear) then the parents must attend mandatory mediation.
If mandatory mediation does not result in an agreement between the two parties, then a third attorney will be appointed to represents the best interest of the child, investigate the two parents and report back to the court their findings.
In the end, all decisions in an Illinois court regarding children focus on the best interests of the children. “[C]ustody proceedings under the Marriage and Dissolution of Marriage Act are guided by the overriding lodestar of the best interests of the child or children involved.” In re A.W.J., 197 Ill. 2d 492, 497-98 (2001)
How To Get Sole Custody Regarding Decision Making For The Child?
It is extremely rare for two non-communicative parents to effectively divide responsibilities. In reality, one parent becomes responsible for everything.
A failure to communicate effectively means that one parent will inevitably have sole custody regarding decision making. An Illinois family law judge is not required to give a parent at least some decision-making power over the children. “Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)
If you can’t communicate with the other parent, how do you ensure that you’ll be the parent who gets to make the decisions for the child?
“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)
“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 5/602.5(a)
Some of the factors listed by the statute to decide decision making are totally irrelevant like “wishes of the parents” or “the child’s daily schedule.” Other factors are just too obvious and therefore control such as “whether one of the parents is a sex offender”. So, let’s just focus on the factors that matter.
“[T]he ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making” 750 ILCS 5/602.5(c)(4)
If you can’t communicate, the court must allocate the decision making. If one parent won’t communicate, the implication is that the more communicative parent should be allocated the decision making.
Invariably, the non-communicative parent does not encourage the children to communicate with the other parent. This also weighs against the non-communicative parent’s ability to make decisions for the children as the court will consider “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 5/602.5(11)
Proving who is the communicative parent is easy: bring in text messages and email. The content of the texts and emails will be as plain as day as to who is willing to cooperate and who is not.
Additionally, there are apps like “Our Family Wizard” which keep a permanent record of the conversations with the other parent. The judge, the family law attorneys and the guardian ad litem will all be able to directly access the Our Family Wizard text transcripts.
If the communication from the other parent is sufficiently hostile or manipulative, you can use the belligerent communication as evidence of some kind of mental unwellness. The court can consider “he mental and physical health of all individuals involved” 750 ILCS 5/602.5(c)(3)
If you can point to the other parent’s failure to communicate as a mental health issue, such as narcissism or being a sociopath, you’re probably going to get sole custody for decision making.
All of these issues should be brought to the attention of the Guardian Ad Litem or Child Representative who will then investigate the matter and report back to the judge…who usually follows their recommendation.
Even if you have sole decision making for your children, it’s really not that absolute. Outside of planned decisions about education, health, religion and extracurricular activities, the other parent still can make day-to-day decisions for the child when that child is in his or her possession.
“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.” 750 ILCS 5/602.5(d)
In reality, if you want true sole custody you want to have sole parenting time with the child or children.
How To Get Sole Custody Regarding Parenting Time For The Child?
“A reasonable visitation schedule is one that will preserve and foster the child’s relationship with the noncustodial parent.” In re Marriage of Eckert, 119 Ill. 2d 316, 327 (1988)
It is a herculean task to keep a parent from having ANY parenting time with their child. The Illinois statute presumes that each parent is “fit” and entitled to parenting time.
“It is presumed both parents are fit and the court shall not place any restrictions on parenting time.” 750 ILCS 5/602.7(b)
If you want sole parenting time, the other parent must have some serious character flaws that are giving you such serious anxiety that you don’t even want your children exposed to the other parent.
Even if the other parent is an adulterer, drug addict, drunk, spendthrift, gambler, gun nut or a smoker, it will not reduce their parenting time so long as they don’t do those things in front of 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)
So, we can’t really get sole custody from the very beginning. The other parent is going to ask for parenting time immediately, before the divorce or parenting matter is finalized.
“A court may order a temporary allocation of parental responsibilities in the child’s best interests before the entry of a final allocation judgment.” 750 ILCS 5/603.5(a)
But, you can typically keep that initial parenting time limited and supervised if the guardian ad litem or child representatives agrees with that the parenting time being subjected to those kind of restrictions.
Once the temporary visitation is established, a parent who doesn’t deserve parenting time will inevitably completely and horribly screw it up.
When they do screw up, you must file a motion to bring that screw up to the court’s attention.
After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)
If the incident was really bad, you can even bring this motion before the court on an emergency basis in order to get an emergency custody order.
After the court hears about the incident, the court may order “a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time” 750 ILCS 5/603.10(a)(1)
This is really the only way you can get court ordered sole custody of a child in Illinois. You need the Illinois family law judge to make a finding of an unfit parent in order to truly deny that parent parenting time with their children.
How Sole Custody Can Be Preserved In An Illinois Divorce Or Parentage Action
Sole custody doesn’t last forever, however. The statute then gives the violating parent the power to remove the restrictions.
“The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child’s best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities” 750 ILCS 5/603.10(b)
In reality, the violating parent will either change their ways (or appear to) or the violating parent will simply disappear.
Even if the violating parent does change their ways to the satisfaction of the family law judge to allow for continued visitation, the violating parent will still have been absent for some time.
It is decidedly not in the children’s best interests for an absent parent to just reappear like nothing happened. The reappearance of an absent parent almost always require reintegration therapy (also known as reunification therapy). An Illinois family law court will enforce this therapy.
“The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, if it finds…the child’s physical health is endangered or that the child’s emotional development is impaired”750 ILCS 5/607.6
The truth is that most people lose touch with their children due to addictions or personality disorders.
If the other parent has struggled and successfully dealt with an addiction, that parent will be no stranger to therapy and will welcome the reintegrative therapy.
However, if the other parent has a personality disorder like narcissism or a “cluster B” personality disorder, that parent will avoid any kind of therapy at all cost. So, that parent will probably never reenter the child’s life.
How To Get Sole Custody Post-Divorce
It’s especially difficult to keep a parent out of a child’s life if a final allocation of parenting time and parenting responsibilities has already been entered. In that final allocation of parenting time and parenting responsibilities there is probably a clause in that order that says “both parents are fit”. That is an official “finding of the court” and a subsequent court can not undo that declaration of fitness. Marriage of LaTour, In re, 608 N.E.2d 1339, 241 Ill.App.3d 500, 181 Ill.Dec. 865 (Ill. App. 1993)
To get the court to make an official finding of unfit-ness is going to require some really extreme behavior on the part of the unfit parent.
Sole Custody And Child Support In Illinois
Child support in Illinois is determined by the number of overnights each parent has with the children. If you have all of the overnights, though, you don’t get more child support. Child support is only reduced if the other parent has more than 146 overnights a year (40% of all overnights). That is a far cry from sole custody.
Many parents seeking sole custody are often willing to trade away child support for sole custody. The right to child support in Illinois, in theory, belongs to the child not the parent. So, you cannot set child support to zero unless you can give the judge a good reason…and you never can.
But, you can “reserve” the issue of child support. This means no child support order is entered but you can return to court at anytime in the future and ask for child support AND back child support from the date of the reservation.
Sole custody is a really big deal in Illinois. Sole custody depends almost entirely on the faults of the parent who you are trying to take parenting time away from. If the other parent is going to insist on parenting time, those faults have to be extreme and they have to be proven in a court of law. To talk about sole custody and your Illinois divorce or parentage case, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.