What is Joint Custody and Sole Custody Under the Illinois Marriage and Dissolution of Marriage Act ("IMDMA") ?
Legal Custody Legal custody is the right to determine a child's upbringing, which includes the ability to make major decisions in the child's life. The most common major decisions are healthcare, education, and religion. However, other important decisions also include extensive travel, participation in hazardous sports or activities, or litigation involving or benefiting a minor child. This is not the same as physical custody, which simply means having physical possession of the child (i.e., a parent without legal custody who is exercising visitation). Moreover, legal custody does not include common day to day decisions (meals, clothes, etc.) which are made by the parent with physical custody of the child.
The Difference Between Joint and Sole Custody
The party who is awarded legal custody has the sole right to make these important decisions, without any input or recourse from the other spouse. Joint custody on the other hand would give each parent a say in the major decisions of the child. As an example, a parent with sole custody can decide which school the child will attend. If parents with joint custody disagree on such a decision, they would have to resort to a dispute resolution process, usually mediation, or seeking court intervention.
How Does Legal Custody Affect Visitation?
Many divorce litigants are afraid that if they lose legal custody, they will not see their children; this is not the case. Whether a parent has sole or joint custody does not affect their right, or amount, of visitation. The right of a parent to spend time with his or her child is paramount, and will only be restricted if it can be shown that such visitation poses a danger to the child's well being. Therefore, many litigants who are fighting for custody simply because they want to see their children are wasting time, money and energy; they have that right regardless.
How Does The Court Determine Who Should Get Custody?
The court uses the "best interest of the child" standard to determine custody found at 735 ILCS 5/2-602, which cites various factors that the court is to follow, including (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and other important persons(4) the child's adjustment to hishome, school and community;(5) the mental and physical health of all individuals involved. The Court also looks at the presence or threat of physical violence in the home, whether a parent is a sex offender, whether the parents encourage the other parent's relationship with the child, and whether a parent is in the active military.
A court will only award parents joint custody if they show that they can come to agreements regarding the children. If, however, the parties argue and disagree regardless of the issue, a court will not allow joint custody.
If the parties cannot agree on custody, the Court may appoint a legal representative for the child, either a guardian ad litem (GAL) or a child representative pursuant to IMDMA section 604(b) . Both of these are attorneys that represent the children's interests, the cost of which are usually split by the parties. The GAL or child representative will interview the children, parents, and any other important persons and inform the court of their opinion regarding custody and/or visitation. The Court may also appoint a mental health professional to evaluate the children, parents or other parties to help the court make a custody determination. If a party does not agree with the evaluation of the GAL, child representative, or mental health professional appointed or requested by the Court, a party can retain their own evaluator under IMDMA Section 604.5 to offer another opinion, usually at that party's own cost.