No More Child Custody under Illinois Law: What the Allocation of Parenting Time and Parental Responsibilities May Mean for Your Divorce

On January 1, 2016, the Illinois Marriage and Dissolution of Marriage Act, which governs family relations, underwent substantial amendment. Included in these amendments is the elimination of certain traditional terms such as “child custody” and “visitation.”  While these terms were abolished, this does not mean that the principles behind these terms were discarded.

The purpose behind such changes was to abolish the idea that parents must fight for custody, and the traditional notion of “who gets custody” means “winning,” which can adversely affect the relationships between children and parents.

Traditional Child Custody Terminology

In most states, the legal standards applicable to traditional child custody and visitation remain in effect, and until recently, the same standards applied in Illinois.

Prior to the most recent changes, “child custody” was generally divided into two categories: “physical custody” and “legal custody.” Physical custody refers to which parent has actual physical charge and control of the child, i.e., which parent the child lives with.

Physical custody could be “sole” or “joint,” meaning that the parents can share custody or one parent may have the sole right to physical custody of the child. Although rare in traditional divorces, when one parent is abusive, neglectful, or struggling with addiction, sole custody is more commonly awarded to a single parent.

“Legal custody” on the other hand refers to the rights of parents to make important decisions on behalf of their children, including decisions regarding education, religion, and healthcare. Again, this can be sole or joint depending on the nature of the judicial custody award and the best interest of the child.

Best Interest of the Child

Before discussing the changes to Illinois law, which are complex, it is important to understand that the traditional “best interest of the child” standards still govern custody/ parenting applications. In determining the best interest of the child, courts must consider:

  • The wishes of the parents;
  • The wishes of the child (depending on his or her age and maturity);
  • How the parents have cared for a child in the past;
  • The conduct of the parents;
  • The relationship between the child, the child’s parents, and the child’s siblings;
  • The child’s connection to school, home, and community;
  • The child’s needs; and
  • The potential for or history of abuse.

If an acceptable resolution cannot be reached by the parents, the court will make parenting time decisions based upon these factors.

Parenting Time and Parental Responsibility Standards

When Illinois amended its family law code, it replaced the terms “child custody” and “visitation” with the terms “parental responsibly” and “parental time.” Now, instead of the judge having to determine whether both or one parent gets full “legal custody” of the child, that is, the ability to make important decisions on his or her behalf, the judge can allocate individual responsibilities to each parent.

For example, a judge may determine that the child’s mother is best suited to make decisions regarding the child’s health, his father is best suited to make decisions about his religious upbringing, and both parents should have joint authority to make decisions about the child’s education. This is an alteration to the old common law idea of “legal custody” as discussed above.

Parenting time, on the other hand, has replaced the traditional notion of visitation. As opposed to having one parent with primary physical custody while the other parent gets only “visitation” with the child, each parent is generally entitled to suggest a parenting time schedule. The court will consider the best interest of the child standards in making this timetable determination.

How I Help Clients with Parenting Time Matters

Whether you have an older custody and visitation schedule in place, are parenting as an unmarried couple, or are in the dissolution of marriage process, it is essential that you get experienced legal counsel to better understand how the changes to Illinois family law will affect your situation.  I can help.

Please call me to schedule a confidential consultation online or at (815) 904-6246.

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