October 15

Is Custody Dead? Understanding Child Custody in Illinois


Tags

child custody, children and divorce, divorce blog


Death of Custody - Cartoon tombstone saying "RIP Custody"Have you ever stopped to wonder why we use the same word – “custody” – to describe the right to care for our children and the imprisonment of criminals? It seems a little strange once you actually think about it. Maybe that’s why the Illinois legislature recently eliminated child custody in  Illinois divorce proceedings.

If you don’t live in Illinois, you may not care about child custody in Illinois. But, before you hit the “back” button on your browser, consider this: Illinois is not the only state that has abolished the term “child custody.” As a matter of fact, the trend everywhere is to do exactly what Illinois has done.

Roman Colosseum

First, A Little Background

The concept of “custody” has been in our law since the time of the Roman Empire.

Originally, children were considered to be the “property” of their father. He was obligated to protect, support and educate them (or sell them, if he chose to do so!) Later, as men increasingly left home to work while women stayed home to care for the kids, the idea that children belonged to their father crumbled. It gave way to the concept that “custody” of children belonged with their mother. Children, especially young children, were thought to need their mom most during their “tender years.” The result was that, in divorce, women almost always got custody of the kids.

Now that’s changing too.

In modern times, women have started working outside the home as much as men.  When parents divorced, modern fathers started complaining that automatically granting custody of children to mothers was unfair. So the law changed again.

Instead of “presuming” that custody should always go to either mothers or fathers, most courts now determine custody based upon “the best interests of the children.” That standard is designed to put the kids first. It’s also designed (theoretically at least) to be gender-neutral. (Yes, many courts still seem to favor giving custody to mothers rather than fathers. But the proposed equal parenting laws are aiming to change  that.)

The bottom line is that the times are changing, and so is child custody in Illinois and elsewhere.

What Exactly is Custody Anyway?

Before diving into a discussion about how custody law is changing, it’s important to understand exactly what custody means.

From a legal perspective, “custody” is made up of two things:

  1. The right to make important life decisions for and about your child (legal custody); and
  2. The ability to have your child live with you most of the time (residential custody).

Legal custody can be sole or joint. That is, either both parents have the right to make decisions for their kids, or only one of them has that right.

Residential custody, (i.e. the place where the children live most of the time) was traditionally always sole. Children usually lived with one parent most of the time. In the past, many courts believed that splitting the kids’ time equally between parents was destabilizing for them. In other words, it wasn’t in “their best interest.”

But as society involved, and parental roles changed, what divorcing parents wanted started to change too. Many parents wanted to “share” residential custody of their children. They started doing that voluntarily, even though, strictly speaking, the law didn’t provide for that.  What’s more, if both parents couldn’t agree to share residential custody, one of them often petitioned the court to get it.

Over time, the trend across the country to grant equal parenting time and equal decision-making ability to both divorcing parents has grown.

Blindfolded lady justice

How Does Child Custody in Illinois Work Now?

In 2015, the Illinois legislature replaced the concept of “custody” with the “allocation of parental responsibilities.” So instead of having “custody” and “parenting time” with their kids, divorcing parents in Illinois now have “parental responsibilities.”

But what does that mean?

It means that divorcing parents in Illinois are”responsible” for their kids in five areas:

1. Education.
2. Health.
3. Religion.
4. Extra-curricular activities.
5. Parenting time.

Each one of these areas is now a separate “parental responsibility.”

What that means is that the legislature has essentially divided custody into its component parts.

Under the old law, the parent with sole legal custody could make decisions for their kids in ALL areas of the kids’ lives. Now parents can divide which areas of life they want to have decision-making rights in.  One parent can now have the right to make education and religious decisions for the kids while the other keeps the ability to make health and extra-curricular activity decisions. In other words, each parent can have some decision-making rights (or not).

And, of course, both parents can share all of the decision-making rights for their kids.

If You Don’t Live in Illinois, Why Should You Care?

If you live in Illinois and you’re going through a divorce, or you have to modify an old divorce judgment, these changes to Illinois custody law will directly affect your case. But, what if you don’t live in Illinois?

Divorce law is state specific. So, unless you live in Illinois, why should you care about what Illinois does?

The answer is twofold:

#1: Even if you live outside of Illinois, you can still split up your decision-making responsibilities for your kids in the same way you can do it in Illinois. Just because the law in your state doesn’t specifically require you to do this, it doesn’t mean you can’t do it. As a matter of fact, I was doing this in divorce cases years before custody in Illinois was abolished. In the right case, dividing decision-making authority for the kids can help settle difficult custody disputes.

#2: Illinois is not the first state to have eliminated custody, and it probably won’t be the last to do so. If the idea of dividing up “parental responsibilities” takes hold in other states, it won’t be long until “custody” in every state goes the way of the Dodo Bird.

Lightning Storm

What’s Wrong With Custody?

The real problem with custody is that the word itself has become a lightning rod for fights between divorcing parents.

Moms feel like they have to have custody because they are moms! They have also been the ones who have usually been primarily responsible for taking care of their children since the kids were born.  Naturally, they want custody of their kids in the future as well.

Dads, on the other hand, love their kids too. Even if they were not their kids’ primary caretaker, they feel like, they’ll lose their kids if they don’t get custody of them in their divorce. They fight for custody so they can remain a part of their children’s lives.

By eliminating “custody” courts have eliminated the “winner take all” mentality that normally accompanies a contested custody battle. Instead of one parent either “winning” sole custody or losing it, parents can now split decision making authority in a way that allows both of them to “win.” If they can do that, and avoid a long drawn-out court battle, not only will the parents win, but so will their kids!

Letters on multi-colored construction paper spelling Child Custody

How Can You Use This No Matter Where You Live

Even if your state still has “custody” (most states do) you can still use the ideas presented here to help you decide what to do with your kids after your divorce.

If you and your spouse can’t agree on who should have custody of your kids, you can split decision-making responsibilities by subject matter. One of you can be responsible for deciding certain issues (e.g. education and extracurricular activities) while the other decides other issues (e.g. religion and healthcare).

Obviously, before you do anything you have to check with an attorney in your state to make sure it will fly. But, the point is that, if you really want to avoid an ugly court battle, and you’re willing to be a little bit creative, you may have more options than you think.

Overall, is custody really dead?

Of course not.

But with our society and our laws changing as fast as they are, it’s not too crazy to think that someday soon, it might be!

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  • My ex boyfriend from at least 5 years prior to december 2015 is a narcissist. I’m getting screwed over by this new law, that I wasn’t aware of. it has brought pure devastation and lost time with my daughter. I wish I can turn back the hands of time and had read my joint custody agreement paperwork prior to moving from Chicago to Rockford. I had residential custody and saw my child at 18+days out of the month my ex had the child about 10 days. Since my move I only see my child on the weekends which is not enough for me and I have been cut out of her school year which is the longest part of the year. Trying to move my child with me has been a battle and at this point I don’t have money for any more attorneys. I Just don’t have the funds to keep going it’s been over a year already and Theres still no progression. The home study person was an idiot she was in his favor and so is the GAL I have never been arrested, on drugs, neglectful or abusive to my child. At the time that all of this began I was a single mom I am married now. However, my child is the most important person to me. I have tried to move back to Chicago the rents are high. So I figured I would move within the 25 mile rule the GAL’s student assistant told me that even if I moved across the street from my ex that there wouldn’t be a guarantee that I would be able to keep residential custody. I represented myself in my Pre trial and was told if I don’t agree we will go to trial. This is all new to me but am willing to fight for my child because at the end of the day very f ew attorneys give a hoot about there cases let alone dividing a mother and her child. Any advice?

    • Oh my! I can hear how frustrated and upset you are. I don’t blame you. The truth is that, now that you have moved to Rockford, getting back to the same parenting time arrangement that you had before you moved is not going to be easy. And, the student assistant is, unfortunately, right: no matter what you do, there are no guarantees.

      The first thing you need to decide is what you really want and what you are willing to do to get it. Do you want your daughter to live with you most of the time (ie do you want what used to be known as “residential custody?”) What if getting “residential custody” requires you to move back to Chicago? Are willing and able to do that? What’s more, are you willing to move even if you have no guarantee it will get you more time with your daughter (ie “residential custody?”)

      I don’t know all of the details of how and why you moved, and I can’t give you legal advice on a blog. But, what I can tell you is that now that you are in court, and apparently have lost residential custody, you are fighting an uphill battle just to get back to where you were. Plus, if you go to trial without a lawyer, and your ex boyfriend has a lawyer, the chances that you will get what you want are not good. (Sorry.) Lawyers know how to try cases. You don’t. So by going to trial without a lawyer, you are immediately at an enormous disadvantage.

      It may be too late for this, but if your ex-boyfriend is willing to mediate this dispute with you, you might be able to come up with some kind of solution that is at least better than what you would get in court. The problem of course is that, if your boyfriend knows that he has the upper hand (which he probably does) he doesn’t have the same motivation to try to work things out amicably that he might have had before. Even still, it’s worth a try.

      The bottom line is, you’re in a really bad position. You don’t have great options. The fact that you didn’t know about the new law, unfortunately, changes nothing. Your best bet is to try to negotiate to get the greatest amount of time that you can get with your daughter. Move as close to her as you can. I know this isn’t what you want, but, even if you don’t get “residential custody” back, the closer you live to your daughter, the more you will be able to see her.

      If you go to trial, you never know what the judge will do. But, with the GAL and the home study against you, your chances for success are not looking great.

      Finally, think about your daughter. Try to think about what would be best for her, and work on doing that (whatever that is).

      I know this is totally NOT what you wanted to hear. I wish I could give you better news. I can’t. Right now, you’ve just got to do the best you can.

      Sorry.

      Karen

  • Hi,recently i filed for a divorce.Its in process .We wanted a mutual as we have kid don’t want to make more damage fighting.We are married for 18 years and have 8year old kid.
    My lawyer suggested that i should have the primary physical custody as am the stay home mom takes care of him mostly.But my husband wants both of us to have equal physical and legal custody as our kid will be living with both of us equally after divorce and living in two homes.I would like to know whats the positives and negatives if i have full Primary physical custody.Firstly i was ok to have equal custody as he is a good dad and takes care of our son well.And we agreed what ever assets and all are there will be equal and he is ready to help with alimony and all the needed support for me and kid.
    We wanted a peaceful divorce as taking divorce is been very painful and emotional we don’t want further our kid to be impacted in all these financial and settlement things.It would be great if you can advise in this matter.Thank you
    Your website has been so informative and helpful for people like me who don’t have any knowledge of divorce process and everything related to it.Thank You
    Wanika

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