Divorcing family trying to divide child custody

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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What Are The Different Types Of Child Custody In Illinois?

Divorcing family trying to divide child custody

Our culture is full of references to different types of child custody; sole custody, joint custody. legal custody, physical custody among others.  In Illinois is child custody really something that you can fit into a box and label so cleanly? What are the different types of child custody in Illinois?

Child Custody Doesn’t Formally Exist Anymore in Illinois

In 2016 the Illinois legislature rewrote the Illinois Marriage and Dissolution of Marriage Act to strike the word “custody” entirely entirely out of the Act. 

In lieu of describing a parent’s relationship with a child as “custody,” the Illinois legislature created the twin concepts of: 1) parenting time and 2) parenting responsibility.

Parenting time is literally just a schedule of each parent’s time with the children.  This schedule is agreed to and approved by the family court judge.  If the parents can’t agree on the schedule, the family court judge will assign the parents a schedule 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)

Parenting responsibilities refer to the decision-making responsibilities that each parent will have on behalf of the child.  The parties may agree to share decision-making for the child or they may divide up the individual categories of decision-making responsibilities.

Those categories of decision-making responsibility must include:

If the parents can’t agree on who gets what responsibility, the Illinois family court judge will allocate those responsibilities amongst them.

“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)

So, as of today’s date, there is no “child custody” in Illinois.  There is just a schedule and assigned decisions each parent can make. 

Decision-making and parenting time can be accurately described under the old terms as “legal custody” and “physical custody,” respectively.

If this change to post-modern nomenclature feels kind of clunky, that’s because it is.  People still tell their divorce lawyers “I want joint custody” or “I want sole custody.”

The word “custody” is still very important in our society.  So, important that the Illinois legislature effectively erased it but that it’s going to stop people from wanting “custody”

It is the divorce lawyer’s job to explain what joint and sole custody look like under the new Illinois domestic relations statute.

Joint Child Custody In Illinois

Joint custody in Illinois is effectively sharing the decision making and the parenting time 50/50 between both parents. This “agreement to agree” will be laid out in the parties’ Agreed Allocation of Parenting Time And Parenting Responsibilities.

Joint custody presupposes that the parents can communicate and work together effectively together.  After 15 years of practicing family law I am still shocked and touched by the many parents who can put aside their differences and agree to agree in the best interests of their children.

If one parent doesn’t want joint custody and can’t see the parties cooperating, that parent can point out to the Illinois family law court that joint custody is impossible because they can’t work together.

“[T]he ability of the parents to cooperate to make or the level of conflict between the parties that may affect their ability to share decision-making;” 750 ILCS 5/602.5(c)(4)

But, if the inability to agree is due to one parent in particular then the court may award more parenting time to the parent who will cooperate.

“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

“the ability of the parents to cooperate in the arrangement.

the willingness and ability of each parent to place the needs of the child ahead of his or her own needs; 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)

If the parents cannot cooperate, joint custody will, sooner or later be removed.  Back in 1994, when joint custody was a legal concept in Illinois, the Illinois appellate courts said this about joint custody:

“If it is accepted that joint custody can only succeed where the parents have an ability “to cooperate effectively and consistently with each other towards the best interest of the child” (750 ILCS 5/602.1(c)(1) (West 1992)), then joint custody should be readily terminated when such cooperation no longer exists. In re Marriage of Wycoff, 639 NE 2d 897 – Ill: Appellate Court, 4th Dist. 1994

It pays to cooperate with the other parent if the other parent is willing to cooperate with you.  The price is a little humility. The reward is a maximal relationship with your children…for both parents.

Sole Custody In Illinois

Sole custody in Illinois is possible…but it is hardly every complete. 

Illinois divorce and parentage courts do not have a “default” custody arrangement per the statute.  Even if there were a cultural standard for custody in an Illinois divorce court, it wouldn’t be 50/50 joint custody. Illinois is still very much an “every other weekend” state.

The Illinois statute regarding parental decision-making even says as much.

“Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)

If you’re dead set on limiting your child’s exposure to the other parent, you’d better have some serious allegations that you can prove and hold up to the statute.  To remove a parent from a child’s life almost always takes some kind of abuse such as:

“[T]he physical violence or threat of physical violence by the child’s parent directed against the child;” 750 ILCS 5/602.5(c)(12)

OR

“[T]he occurrence of abuse against the child or other member of the child’s household” 750 ILCS 5/602.5(c)(13)

The real question is how much time will the non-primary parent have?  In my experience, a parent’s time with their children is usually restricted by their work schedule more than anything else. If a parent can accommodate a 50/50 parenting schedule and is not a danger to the children, you’re going to be lucky if you can even keep that parent at a 60/40 parenting schedule.

Realistically, anytime you have your children with you have effective sole custody so long as the decision doesn’t involve one of the big four factors: education, health, religion, or extracurricular activities.  When your kids are with you, you are, effectively, the only parent.

“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)

How To Get Sole Custody Of Your Children In Illinois

My earlier description of sole custody in Illinois made exclusive child custody look like a fool’s errand, which it is…at first.

Almost every Illinois divorce or parentage case will start the same way: one parent moves out of the house and has their parenting time drastically reduced until a temporary and then final parenting plan is entered.

The absent parent always builds their way back up to the maximum amount of parenting time which they can sustain. The courts do a slow, wait-and-see, approach to let the absent parent build trust and build time.  This is great for the absent parent but not a positive result for the parent looking to keep sole permanent custody of their children.

An alternative strategy is to say to the obviously non-primary-parent-to-be, “Go ahead. You want them 50/50 or 60/40 or whatever, do your worst!”

The other parent will never be prepared for this.  They will screw up, but hopefully only to the point of embarrassment and not the point of endangering your children (otherwise, I would never recommend this strategy).

“Give him enough rope and he will hang himself”

– Charlotte Bronte

If you allow or the judge orders parenting time for a parent who is not responsible enough to have the children alone for extended periods of time, something will happen…it always does.

Once an incident occurs, you can rush to the courthouse with a motion to restrict parental responsibilities.

“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

An Illinois family law judge will almost always err on the side of caution and do one of two things per the statute: change or remove parenting time or impose supervised parenting time.

“(1) a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;

(2) supervision” 750 ILCS 5/603.10(a)

Supervised parenting is the step right before sole custody.

Supervised Parenting Time In An Illinois Divorce or Paternity Case

Supervised parenting time is usually the most common salve for a bad parent.  The supervisor is usually a relative or close friend that both parents know and that can accommodate the allotted parenting time.

At this stage of a case, a guardian ad litem is usually appointed to investigate what really happened. This additional cost to the case is an additional burden for the more reluctant parent.

If a relative or a close friend isn’t available for supervised parenting or the parents cannot agree on a supervisor, the supervised parent must hire a parenting supervisor.

For the supervised parent, these parenting supervisors can be a blessing in disguise as they can testify to what actually happens when the supervised parent is with his or her children.

But, supervision usually won’t be lifted until the supervised parent accomplishes some kind of goal is achieved such as “requiring a parent to complete a treatment program for perpetrators of abuse, for drug or alcohol abuse, or for other behavior that is the basis for restricting parental responsibilities” 750 ILCS 5/603.10(a)(8)

Supervised parents tend to either turn their lives around or disappear entirely.  If they disappear entirely, you’ll have sole custody by default. 

Once a parent has an extended absence from the children, it is not fair to the children to simply reintroduce the missing parent months or years later. 

An absent parent should not see their children again until they agree to attend reunification therapy (also known as reintegration therapy).  With the help of a counselor to temper everyone’s emotions, the missing parent can make a slow entrance back into the children’s lives. 

These necessarily cumbersome steps are why absent parents sadly but inevitably lead to permanent sole custody of a child. 

If the supervised parent removes the requirement of supervision per court order, there will still be a complete lack of trust between the two parents and a parenting coordinator will likely need to be hired to help with future parenting schedules.

How Does Child Custody Affect Child Support In Illinois?

Child support in Illinois is determined based on a complicated calculation that accounts for both parents incomes.

The next step of the calculation is determining how many overnights each parent has. If each parent has more than 146 overnights the calculation of child support in Illinois changes dramatically.

“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)

Basically, child support is reduced by half if a parent has 60/40 or more share of parenting time.

Initially, avoidance of child support can often be the root of a custody battle. In reality, child support awards under Illinois law are surprisingly modest if you actually crunch the numbers. It’s simply not worth fighting for or against more parenting time for the sake of a few extra hundred dollars a year.

Parents that practice joint 50/50 custody in Illinois usually waive child support and simply divide the children’s expenses 50/50 or proportionately to their incomes.

If you’d like to explore your options in getting joint custody, sole custody or something in between, please contact my Chicago family law office to speak with an experienced Chicago divorce lawyer.