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Joint Child Custody

Joint custody is a statutory term found in Illinois divorce law and has a specific meaning.  While not appropriate in all cases, joint custody has been widely embraced by parents, psychological professionals and lawyers.  Here you can find additional information about joint custody in Illinois.

What is Joint Child Custody?

I am a father involved in a divorce/paternity proceeding. I heard about joint custody, but I am not sure what it is.

Joint custody is sort of like beauty. It is mostly in the eyes of the beholders. The joint custody statute states that a joint custody agreement “shall specify each parent’s powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care and religious training.” I call this type of joint custody decision making joint custody.

Doesn’t joint custody give the parents equal rights to the child?

No. Absolutely not.

What do you mean when you use the term “Custody?”

There is no legal definition. A logical definition of custody is the place where the child spends the most time, that is, sleeps the most nights. This is the parent who has custody, and the other parent has visitation.

Doesn’t the law define joint custody?

Sort of. The law states joint custody is whatever the parents agree. Of course there are instances where the parents agree to substantially equal custody, for example, having custody in alternating weeks, or one parent having the child during the school year and the other during the summers, etc.

The only items the law requires to be addressed in a Joint Parenting Agreement are a method of resolutions of  “major decisions, such as education, healthcare and religious training.” The fact is, however, that with most parents, major decisions involving education, health and religion rarely come up. Joint custody does not involve joint decision making for the day-to-day care of a child.

What does the usual Joint Parenting Agreement provide?

The usual Joint Parenting Agreement states that the parties, jointly, shall make decisions regarding matters of the child’s education, health care and religious training.

So I can compare joint custody to ordinary custody and visitation, what is usual visitation?

The parent with visitation will usually see the child on alternating weekends, perhaps one night a week, or one night every couple of weeks after school until bedtime, alternating holidays, birthdays etc., and not less than two weeks during the summer.

How significant is it to have decision making joint custody regarding education, health care and religious training?

Usually it is not significant. A major decision regarding education might be to take the child out of public school and place the child in parochial school, or vice-versa. A major health care decision might also be whether the child should have cosmetic surgery. Religious training might be an issue if the custodian converted from one religion to another and intended to raise the child in the new religion. The fact is that these types of decisions rarely come up between divorced parents.

What then is the purpose of an agreement having decision making joint custody?

I am of the opinion it is a placebo, a sugar pill, which judges, lawyers, mediators and custody evaluators give to fathers so the fathers feel they have a victory.

How does this apply to the custodial parent moving out of state?

I am the visiting parent, but I have joint custody. Does that not mean that the custodial parent cannot move out of state with the child?

Joint custody does not place you a leg up in resisting the application of the custodian to move out of state with the child. The same rules would apply whether there is sole custody, or joint custody.

Doesn’t it make it easier for me to get custody transferred to me if I have joint custody?

No. As in removal of a child from Illinois, joint custody does not give you any advantage if you apply for transfer of custody.

How do the courts feel about joint custody?

Joint custody (whether split custody or decision making custody) can be established either by a joint parenting agreement of the parents, or it can be ordered by the judge. Judges will sometimes recommend decision making joint custody in order to bring about a settlement of a case that might otherwise go to trial. Sometimes, but rarely, a judge will order joint custody.

In 1982, when Illinois first introduced the joint custody law, many judges and lawyers thought it was the best thing since sliced bread. The Middlesex Divorce Research Group studied 700 divorce cases in Cambridge, Massachusetts and found that couples with decision making joint custody were more than twice as likely to relitigate their child care arrangement than in cases where the court awarded sole custody.

I examined the Illinois appellate court cases from 1995 to 2002. During those years the Illinois appellate courts in 10 cases out of 12 reversed the trial court’s award of joint custody. In short, the Illinois appellate courts are not in love with joint custody.

What is the main factor courts consider in deciding whether there should be joint custody?

It is, in accordance with the joint custody statute, “the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child.” My experience is that if the parents are able to “cooperate effectively and consistently” there would not have been a divorce in the first place.

What is Joint Custodial Custody?

I call this split custody and I define split custody as a custody arrangement where custody is shared substantially equally, or at least the visiting parent has substantially more time with the children than in the customary visitation arrangement.

Sometimes the custody is divided on a week to week basis, sometimes monthly and sometimes one parent is the custodial parent during the school year and the other parent during the summer vacation. There are even some split custody arrangements where the children stay in the former family residence, but the parents each have separate residences and take turns moving in and out of the family residence and being with the children.

What, in your opinion, does it take for split custody to work?

  1. The ability of the parties to communicate.
  2. They should live within the same school district.
  3. The children must be the most important things in the life of each parent.

Do you favor split custody?

No. I have seen it work to the benefit of the children only in two or three cases.

If I get joint custody, don’t I get a break on child support?

Maybe, but not likely. If you have less than equal custody and if you make more than the other spouse, the likelihood is that you will end up paying statutory child support, that is, 20% of net income for one child, 28% for two children etc.

If you have substantially equal custody, the amount you pay for child support may be somewhat discounted. If, however, you and the other parent make substantially equal amounts and share the custody of the children substantially equally, there may be a wash, that is, neither parent pays support to the other.

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