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Posted on June 21, 2020

Who Is The Primary Residential Parent In An Illinois Divorce or Custody Case?

Parents are parents.  Moms are moms and dads are dads.  But when people get divorced or separated, some parents try to become the better parent, parent # 1, super parent, or something like that.  In reality, there is no official legal label for the primary parent in an Illinois divorce or custody matter.  But, Illinois law does require one parent to be named as the primary residential parent.  What is the primary residential parent in an Illinois divorce or custody case?

There Is No Custody In Illinois Anymore

Officially, there is no custody in Illinois anymore.  While a parent might have their child all the time, they won’t be labelled as having “sole custody” or “full custody.” Likewise, two parents who share 50/50 time and decisions with their child cannot write “joint custody” on their final divorce documents.

In lieu of common sense yet loaded terms like custody, in 2016, the Illinois legislature divided the concept of custody into “parenting time” and “decision making.”

Parenting time is simply the child’s schedule as to which parent the child is spending time with.  Often, overnights are specified and nothing else (kids go to school during the day without parents).

Decision making is defining which parent makes what decisions for the child.  Parents who can talk with each other usually make joint decisions for all major issues.  If parents cannot talk to each other, each parent will be assigned a specific decision-making area like health, education, religion and/or extra-curricular activities.  All parents make the children’s day-to-day decisions while the children are in their care.

So, if there is no sole custody, full custody or even joint custody, why do we have to pick a primary parent in an Illinois divorce or parentage case?

If There’s No Custody In Illinois, Why Is There A Primary Parent?

While the Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act mention nothing about custody, the Illinois School Code does discuss custody for the purposes of registering and enrolling children in school.

The Illinois Marriage Act accommodates the Illinois School Act’s antiquated use of the term custody.

“Designation of custodian for purposes of other statutes. Solely for the purposes of all State and federal statutes that require a designation or determination of custody or a custodian, a parenting plan shall designate the parent who is allocated the majority of parenting time. This designation shall not affect parents’ rights and responsibilities under the parenting plan. For purposes of Section 10-20.12b of the School Code only, the parent with the majority of parenting time is considered to have legal custody.” 750 ILCS 5/606.10

Custody as a concept still exists when it comes to determining which school district the child will attend.  But, that “school district custody” has no impact on any other arrangement the two parents come to.

Where a child attends school is a big deal to the parents, the child and, especially, the school.  Children have a right to an education in Illinois but the quality of that education varies greatly depending on where the children live. In order to determine where a child goes to school, the Illinois School Act makes a custody determination in order to determine the child’s residence.

“The residence of a person who has legal custody of a pupil is deemed to be the residence of the pupil.” 105 ILCS 5/10-20.12b

This child’s residency must be included in an Illinois Parenting Plan.   750 ILCS ILCS 602.10(f)(6) requires that a parenting plan list “the child’s residential address for school enrollment purposes only”.

Parenting Plans and Allocations of Parenting Time and Parental Responsibilities(these two terms are interchangeable and refer to the proposed and the entered parenting agreements, respectively) usually include a paragraph which says:

“Residential Parent/Parent with the Majority of Parenting Time for School Enrollment Purposes: For the purposes of Section 602.10 and 606.10 of the Illinois Marriage and Dissolution of Marriage Act, _________is the parent designated as the residential custodian of the minor children. Designation in this paragraph is limited to the purposes stated herein and contained in the statute.”

If the parenting plan does not designate a parent as the residential parent for the purposes of school enrollment, the school has to figure out who has legal custody using the following statutory formula.

“Legal custody” means one of the following:

(i) Custody exercised by a natural or adoptive parent with whom the pupil resides.

(ii) Custody granted by order of a court of competent jurisdiction to a person with whom the pupil resides for reasons other than to have access to the educational programs of the district.

(iii) Custody exercised under a statutory short-term guardianship, provided that within 60 days of the pupil’s enrollment a court order is entered that establishes a permanent guardianship and grants custody to a person with whom the pupil resides for reasons other than to have access to the educational programs of the district.

(iv) Custody exercised by an adult caretaker relative who is receiving aid under the Illinois Public Aid Code   1 for the pupil who resides with that adult caretaker relative for purposes other than to have access to the educational programs of the district.

(v) Custody exercised by an adult who demonstrates that, in fact, he or she has assumed and exercises legal responsibility for the pupil and provides the pupil with a regular fixed night-time abode for purposes other than to have access to the educational programs of the district.”

You will notice that the school code does not care who is declared the primary residential parent in the final Allocation of Parenting Time and Parental Responsibilities.

The Illinois statute requires that a parenting plan include which parent has the majority of the time with the child. An Illinois Allocation Judgment must have “a designation of the parent who will be denominated as the parent with the majority of parenting time for purposes of Section 606.10”

The school a child could attend can have a big impact on who the court determines will have the majority of time with the child.

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)

“Courts have previously found school quality to be a relevant factor in determining a child’s best interests.” In re Custody of G.L., 2017 IL App (1st) 163171

So, absent an agreement of the parties, the parent with the most time with the child will determine the school district the child attends.

What If The Parent Without The Majority Of The Time With The Child Is Declared The Primary Residential Parent?

If one parent lives in a better school district, it will be tempting to enroll the child in that school district even if the child doesn’t spend most of their time at that parent’s house. 

Doing so would be a crime with severe penalties.

“A person who knowingly or willfully presents to any school district any false information regarding the residence of a pupil for the purposes of enabling that pupil to attend any school in that district without the payment of a nonresident tuition charge shall be guilty of a Class C misdemeanor.” 105 ILCS 5/10-20/12b(f)

The school district can even send a misregistered student a bill for tuition because they weren’t properly enrolled. 

Does anyone ever get prosecuted for this if at least one parent lives in the district? Especially if that parent’s address is designated “the child’s residential address for school enrollment purposes only?”

I do not know. But, I cannot advise breaking the law as I interpret it.

Realistically, who is going to have a child sleep over 5 nights a week in a district they don’t even attend when the other parent is right by the school? A visitation schedule with overnights in a different school district would be a logistical nightmare. It just doesn’t happen often. 

Who Is The Primary Residential Parent If Both Parents Have 50/50 Custody?

While the statute keeps mentioning “majority of parenting time,” there’s no rule for when the parents truly share their child’s time equally.

Presumably, either parent could be declared the primary residential parent if both parents share 50/50 custody. 

How Do You Determine Which School The Child Will Attend If The Child Is Only A Baby?

When two parents get divorced or separated, their lives are in flux.  People may be living in small apartments as they reorganize their lives.  It can be impossible to know where they’ll be in one to 5 years when the child is ready to attend kindergarten. 

So, the parties don’t need to make that decision before both they and the child are ready.  The parties can simply reserve the issue of who will be the primary residential parent for school purposes. 

The parties can simply put this language in their Allocation Judgment: “the parties do not agree as to where the minor child will attend Kindergarten, then the parties will immediately enter into mediation pursuant to Article ____ of this document.” 

When it’s time to decide on a kindergarten, the parties will either agree or hire a mediator per their Allocation Judgment.

Why Is The Designation Of Primary Residential Parent So Important In Illinois?

Where the child attends school will largely determine where each parent lives and what that parent’s schedule will be with the child. 

It is logistically impossible to live 20 miles from a child’s school and have weekday parenting time.  The courts won’t deny the primary residential parent some weekend time with the child.  So, you’ll be stuck as an every-other-weekend-parent unless you live close to the child’s school.

Furthermore, the child’s school district almost never changes.  It would take a finding that it is the best interests of the child to change the child’s school district (no matter who is the primary residential parent).

So, where your child attends kindergarten will likely determine the bulk of a parent’s life for the next 13 years until that child graduates from high school.

If you’d like to discuss who will be the primary residential parent after your Illinois divorce, contact my Chicago, Illinois family law office to speak with an experienced Chicago divorce attorney.

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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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