Some thoughts about joint custody


The Residential Parent (who for the pure sake of ease in writing) we will call MOM), thinks that she has won something and the Alternate Residential Parent (who for the pure sake of ease in writing) we will call DAD) thinks that he has lost something.  Unfortunately both are wrong and their personal view is faulty.  The children did not cause the divorce, you did.  The children should have a reasonable expectation that, except for visitation and overnights with DAD, they really “should” continue on as they would have if both parents were living together and giving the children the support and nurturing they deserve.   

First, permit me a word about “JOINT CUSTODY” and “SOLE CUSTODY”:

CUSTODY either sole or joint has been around informally since the time married people began to separate and eventually get divorced.  Some years ago, Judges and the Legislature with help from the Bar Association, decided that the whole concept of winner/loser was creating too many problems so that the label “Joint” came into being.  Joint Custody is the product of a “Joint Custody Agreement” or “Order of Joint Custody” A look at our statute is helpful:

THE ILLINOIS MARRIAGE & DISSOLUTION OF MARRIAGE ACT which we will refer to as simply IMDMA (750 ILCS 5/ 1 et seq, which is the citation to the statutes) provides in Section 602.1 (b) the following:

    (b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody. Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order. In such cases, the court shall initially request the parents to produce a Joint Parenting Agreement. Such 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. The Agreement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents. In producing a Joint Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State as expressed in Sections 102 and 602. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be conducted pursuant to the provisions of Section 605. If there is a danger to the health or safety of a partner, joint mediation shall not be required by the court. In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under the standards of Sections 602, 607, and 608.     (c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:
        (1) the ability of the parents to cooperate
     effectively and consistently in matters that directly affect the joint parenting of the child. “Ability of the parents to cooperate” means the parents’ capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;


        (2) The residential circumstances of each parent; and
        (3) all other factors which may be relevant to the
     best interest of the child.


    (d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:
        (1) express agreement of the parties; or
        (2) order of the court under the standards of this Section.


    (e) Notwithstanding any other provision of law, access to records and information pertaining to a child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child’s custodial parent; however, no parent shall have access to the school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Illinois Domestic Violence Act of 1986, as now or hereafter amended or pursuant to the Code of Criminal Procedure of 1963. No parent who is a named respondent in an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or the Code of Criminal Procedure of 1963 shall have access to the health care records of a child who is a protected person under that order of protection.

There are a few parts of this statute that need to be emphasized in order to understand the impact of the Statute.  First and foremost is that if either side requests joint custody, the court will refer the matter to “mediation”.  The sole function of the mediator is to secure an agreement and report to the court that the parties have agreed (and the agreement is described) or that the parties have not agreed.  The mediator is not a judicial official and can not make findings or recommendations.

Here are the elements (and my comments):

  1. Defining “Joint Custody” is to provide by order or agreement the following elements:
  2. Each Parents’ rights and responsibilities for personal care of the child
  3. Major Decisions to be determined by “agreement of the parties” although the statute is specific on the following three areas, they are by no means the total items that may be inserted by agreement (not the word “agreement”)
    1. Education: This can be as simple as to keep the children in public or private school or to keep them living in the same area.   There are two sides to this and the first one involves costs of education which in a private school can be very considerable when added (and it is not a part of ordinary) to the child support.  Also both parents may live near each other and the one who has the children decides to move (inside of Illinois) and all of a sudden the parenting becomes more difficult when the commute for the children is longer.  This can also deal with “college” and joint decisions of where to go and what it may cost (this is an entirely whole other subject)
    2. Health care: Same doctor, or, who chooses the children’s doctor; who takes them there and do we need agreement regarding medication and course of treatment.  While the joint part sounds good, what about that very expensive orthodontist and one of the parties decides to engage and expects that it will be paid for by the other party (or some portion of the obligation and this is not a part of child support 
  4. Religious Training: I don’t even want to broach this subject in a short paper.  It’s complicated and covers everything from weddings, baptisms, confirmations and bar and bat mitzvah (and the accompanying and traditional parties) . . . Who pays, who goes and how many guests does each get???
  5. Provide for periodic review: while this sounds noble, except for very minor changes, it ends up in mediation (see below) and when serious, eventually ends up where I believe it belongs, in front of the Court.
  6. Method of Dispute Resolution: This is a very specific requirement that affect all matters except emergencies (and any items that the agreement may specifically reserve) shall first go to mediation (an attempt to get an agreement) and failing that, then to the courts.  I have mixed feelings about this entire process but I will discuss that later.  Too often, it’s “here we go again”

If you detect a prejudice on my part against “Joint” anything, its just that I have 40 plus years of seeing this rarely work . . . If you could work together on the day to day decisions of life (and the children are probably the biggest ones), then you would still be married.  Think about that.  All of you spouses who feel your other spouse is “controlling or demanding, do you really think that “joint” will magically eliminate the conflict that got you into the divorce court in the first place?

Here is my observation: One parent is the primary (and we don’t need to label this beyond a simple statement.  That parent is making the daily decisions and if there is anything extraordinary or costing more money or interfering with visitation etc, then there needs to be advanced notice and an opportunity to discuss.  If you can not agree (and you can provide a time limit in days) then the decision is made by the primary or the other can simply file a petition in the court and the judge will determine.  (You may still end up in mediation, but at least the mediation won’t be imposed where the decision is obvious and the non-consenting party is just trying to be obstinate and controlling.


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