Should the Law Encourage Joint Custody?

Should the Law Encourage Joint Custody?

By: M. Scott Gordon

A recent Chicago Tribune article highlights an issue that comes up repeatedly in debates over Illinois family law: the determination of child custody in a divorce. Many parents contend that custody arrangements favoring one parent over another close them off from taking a meaningful role in the upbringing of their children, and have advocated for laws mandating joint custody arrangements. Opponents of such changes argue that judges need as much legal flexibility as possible to protect a child’s well being.

To get a better sense of the debate, it is important to take a step back and understand how child custody arrangements currently work in Illinois. Read on to learn more about Illinois child custody laws, and how they factor into the larger debate over the rights of parents in a divorce.

The Types of Custody

Many parents misunderstand the meaning of the word “custody” in the context of a divorce. Having custody does not directly relate to the amount of time a child spends with his or her respective parent. It is, rather, the ability to make major decisions related to the child, such as where he or she goes to school, practices religion, or goes to the doctor.

There are two types of child custody in Illinois family law:

• Sole custody – In sole custody arrangements, one parent is the sole decision-maker for the child. While the other parent may have visitation rights, the parent holding sole custody will be responsible for all major parenting decisions.
• Joint custody – Decision-making responsibilities are shared in joint custody arrangements. While both parents will a have a say in the upbringing of the child, typically one parent will be granted residential custody to avoid the constant shuttling of the child from one home to another.

Separate and distinct from child custody is the right to visitation. A parent who does have custody of a child will still a have a reasonable right to regular visitation, unless a threat to the child’s welfare can be demonstrated.

How the Court Determines Custody

The court’s first and foremost obligation in determining custody is the well being of the child. Determining what is in the “best interest” for a child is no simple affair, however. The court must take into account a wide range of factors, including the wishes of the parents, the relationship between the child and his or her parents, possible disruptions to the child’s lifestyle, and whether a parent is a sex offender.

The Debate

Courts have historically favored sole custody of children, with the underlying assumption that divorced parents would be unable to effectively make joint decisions about a child’s upbringing. The tide has shifted in recent years, however, with courts increasingly turning to joint custody arrangements whenever possible. The debate documented in the Chicago Tribune article is just one facet of an ongoing national discussion.
When it comes to the custody of your children in a divorce, it is best not to leave anything to chance. You need the skilled guidance of an attorney with years of experience in matters of family law. At Gordon & Perlut, LLC, we help individuals throughout the Chicago area defend their access to child custody in divorce. Contact us today to set up a meeting with an experienced family Law Attorney.