Joint Versus Sole Custody in Illinois

The terms “joint custody” and “sole custody” are often used, but frequently misunderstood. This article provides an overview of custody in Illinois and explains these important terms.

Custody in Illinois

In Illinois, “custody” refers to two major rights. The first is the right and responsibility for personal care of the child, which is often referred to as “physical custody.” The second is the right to make major decisions regarding a child’s welfare, such as medical needs, religious training, and education; this is often referred to as “legal custody.”

In Illinois, custody can be “joint” (shared) or “sole,” which means it’s awarded to just one parent. All custody decisions, including whether to award joint or sole custody, are made by considering the best interests of the child.

Best Interests of the Child

In order to determine what’s in the child’s best interests, courts will consider all relevant factors, including:

  • the parents’ wishes
  • the child’s wishes
  • the interaction and interrelationship of the child with his or her parents, siblings and any other person who may significantly affect the child's best interests
  • the child's adjustment to home, school and community
  • the mental and physical health of all individuals involved
  • the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or another person
  • the occurrence of ongoing or repeated abuse, whether against the child or another person, and
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Courts will presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child, unless it finds ongoing abuse.

Joint Custody

“Joint” custody basically means both parents will share in the custody of their child. Many people assume that joint custody requires equal parenting time (equal amounts of time spent with each parent). But “joint” doesn’t mean an automatic 50/50 split of time. Instead, parenting time is determined in one of two ways.

First, parents can agree on a schedule that works best for their family, and memorialize that schedule in a Joint Parenting Agreement. The agreement must address each parent’s powers, rights and responsibilities for the child’s care and child-related decisions.

Parents must submit their agreement to the court, and if the court approves it (based on the child’s best interests), a judge will adopt the plan and issue a Joint Parenting Order that contains the same terms.

The agreement can split parenting time exactly equally, but it doesn’t have to; and most times, one parent will have at least slightly more parenting time that the other. Normally, the parent that has primary residential custody of a child will have the child a greater amount of time. However, if the other parent is available and it is in the child’s best interests, a judge could order the parents to have near-equal or even equal time with the child.

Alternatively, if neither parent can come up with a joint custody proposal or both parents are fighting for sole custody, a judge will have to decide.

How do Courts Decide Whether to Order Joint Custody?

A court may order joint custody if it determines this would be in the child’s best interests, taking the following into account:

  • the parents’ ability to cooperate and communicate effectively and consistently in matters that directly affect the child (this doesn’t mean both parents must agree on everyday details, but they must be able to discuss and decide major child-related issues)
  • the residential circumstances of each parent, and
  • all other factors which may be relevant to the child’s best interests.

If, after considering all relevant factors above, the court finds that shared custody isn’t in the child’s best interests, the court will grant one parent sole custody, with reasonable visitation rights to the other.

Sole Custody

Sole custody means only one parent is considered to be the custodial parent; the child will live with this parent, and typically, this parent will also have the right to make major child-related decisions.

But sole custody doesn’t mean the other parent can’t spend any time with the child. A non-custodial parent is entitled to reasonable visitation, unless the court finds that visitation would seriously endanger the child’s physical, mental, moral, or emotional health.

“Visitation” means in-person time spent between a child and the child’s parent, but it may also include visitation time via communication tools, such as telephone, electronic mail, instant messaging, video conferencing, or other wired or wireless technologies.

Additionally, both parents are entitled to medical, dental, child care and school records, unless there is a specific court order prohibiting one parent from obtaining such records.

Parental Alienation

Parental alienation is a common problem in child custody disputes; this is where one parent tries to harm the child’s relationship with the other parent by engaging in a variety of inappropriate behaviors, such as:

  • negatively influencing the child against the other parent
  • “poisoning” the child by saying negative things about the other parent in front of the child (e.g., name-calling or attacks on character)
  • repeated interference with the other parent’s visitation time (e.g., intentionally missing scheduled parent-child phone calls or finding other ways to avoid visitation times), and
  • an outright refusal to cooperate with a parenting schedule.

Parental alienation is not well-tolerated by the courts. In extreme cases of alienation, a court could transfer sole custody of the child to the other parent.

If you have a real concern about your child’s visitation with the other parent, address those issues in court. If you believe you or your child might be in physical danger as a result of visitation, contact the police and/or the National Domestic Violence Hotline, by clicking here or calling 1-800-799-SAFE.

If you don’t have any such concerns, and your child has a healthy relationship with his or her other parent, a judge will not likely ignore your attempts to damage that relationship.

If you have questions about custody or alienation issues, you should contact an experienced family law attorney for help.

Resources

For a complete list of the factors courts consider when determining the best interests of the child, see 750 ILCS 5/602.

For the complete text of the law governing joint custody, see 750 ILCS 5/602.1.

For more on visitation, see 750 ILCS 5/607.

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