Joint Custody vs. Sole Custody in Illinois

When discussing a parent’s rights concerning his or her child, the terms “joint custody” and “sole custody” are often used, even though very few people have a clear understanding of their true meaning. Many people believe joint custody implies equal parenting time with the child, but this is not the case. Another misconception is that if one party has sole custody, the other parent is not allowed parenting time (visitation) with the child, which again is usually not accurate.

Joint Custody

Joint custody of a child requires both parents to cooperate in deciding major issues affecting their children, including, but not limited to, major medical needs, religious training, and education. The parties must be able to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. Joint custody does not require that both parents agree on everyday details, such as what the child will wear to school on a given day. Instead, the major issues affecting a minor child are those that should be discussed and agreed upon. The Illinois Marriage and Dissolution Act has specifically mandated what the Court must review and analyze in determining if joint custody is appropriate. See 750 ILCS 5/602.1. 

The parties’ inability to communicate on matters that do not directly relate to the joint parenting of the minor child shall not be considered. This means that joint custody may be appropriate for two people who are unable to get along on other matters, but for the sake of their children can communicate. The court shall further consider the best interests of the child and the residential circumstances of the parties. Obviously, if two parties are living in different states, it makes it more difficult (but not impossible) to jointly parent a child.

There is a common misconception that joint custody equates to equal parenting time. This is not the case and parenting time is determined by the parenting (visitation) schedule agreed upon by the parties or ordered by the Court. A parenting schedule can provide for equal parenting time, but certainly does not have to do so. Normally, the parent that has residential custody of a child will have the child a greater amount of time than the other parent. However, if the other parent is available and it is in the child’s best interest for that parent to have equal time, then a judge could order the parties to have near-equal time with the children. Obviously, the residential circumstances of the parents, ages of the children, activities of the children, school events of the children, and other factors play an important role in determining parenting time.

Sole Custody

When the parents of a child are unable to cooperate in matters directly relating to the major decisions in a child’s life (including, but not limited to, religious training, education, and major medical issues), then sole custody may be appropriate. Sole custody designates one of the parties as the sole custodian who decides the major issues in a child’s life. Sole custody does not mean that the other parent is not allowed visitation with the child. This is a common misconception and is inaccurate. Additionally, both parties are entitled to medical, dental, child care, and school records, whether the custody designation is sole or joint. 750 ILCS 5/602.1

Attempts To Undermine/Alienate A Parent Will Be Examined By Court

A common issue that arises in child custody situations is where one of the parents refuses to cooperate with the other parent for the benefit of their child. A court will look at each parent’s attempts to cooperate with the other parent in issues relating to their children. By the same token, the court will review the parents’ inability to cooperate and attempt to determine if the lack of cooperation is unilateral or if the parties simply cannot agree and cooperate for the best interest of their child.

One parent’s attempt to undermine or alienate the other parent will be dealt with in harsh terms by the Court. If a party is using the child as a pawn, making improper remarks about the other parent in the presence of the child, refusing to cooperate with the other parent without cause, or not affording the other parent a fair and reasonable amount of parenting time with the child, the court may determine that the party is attempting to alienate the child from the other parent. In extreme cases of alienation, a court could award sole custody of the child to the other parent. A court must be concerned about one parent poisoning the child against the other parent, and it may require that the child be removed from such an environment to avoid any further harmful effects.