Illinois Joint Custody

Why Illinois Joint Custody is Overrated

provided by J. Richard Kulerski, Esq.

The public seems to have been misled, either by myth or otherwise, regarding the concept of joint custody. It does not mean 50/50 time with the children.

'Joint Custody' is just a term and not much more. It is highly sought after but is not what people think it is. It is generally nothing more than a name given to the type of visitation the non-custodial parent gets. It provides the non-custodial parent with a title which is intended to make that person feel better about his or her role with the children but it does not, in and of itself, have to give that parent any more rights with the children than in cases where the other parent has sole custody.

  • Prior to 1977, the mother generally got custody of the children and the father got visitation.
  • Joint custody was enacted in Illinois in 1977.
  • Nowadays, if joint custody is awarded, the mother generally gets possession of the children and the father gets visitation.

A joint custodial parent does, however, receive three rights that are not available in a sole custody arrangement. Those are as follows: an even say (with the custodial parent) as to the choice of schooling, religious upbringing and health treatment of the children. The joint custodial parent does get a 50/50 vote with the custodial parent regarding these three items. However, these three items can be negotiated into a Marital Settlement Agreement even where the other spouse receives full custody. If the parties agree, the non-custodial parent may be awarded those three rights even if he or she is not a joint custodial parent.

When joint custody first got started in Illinois, it was generally believed to be a situation where the parents would each be with the children 50% of the time. That belief did not last long in our legal community. Starting in the early 1980's the psychiatric community (in custody and visitation cases) recommended to the Courts and to divorce lawyers that children do not nurture well in a 50/50 time sharing arrangement. Please note that there are some rare exceptions to the last sentence. It was concluded that children do the best when one parent serves as the primary caretaker or residential parent and the other parent is the visiting parent.

The children should be basically able to live and work out of one location with one set of rules and report to one parent regarding adherence to that parent's rules.

Actually, if you think about it, an adult would have a hard time living in one household 50% of the time and in another household 50% of the time. There would be a continuous overlap of painful duplicity -i.e. where is the TV guide in this household? How do I work this dryer? Did I leave the corkscrew at the other house? Where is my hair dryer? How do I set this alarm clock? How much time do I need to get to work or school from this location? How do I work this VCR? What number is the Discovery Channel on this TV set? How do I work this remote control? When was the last time I changed these sheets? Do I have oregano or celery salt at this home? I'd like to wear my red tie today, is it here or at the other place? Do I have a clean shirt for tomorrow at the other place?

The above questions are mostly male oriented and are of relatively minor importance. I am confident that there are numerous female oriented questions of a similar nature that can easily be asked. I hope I have made the point clear. It is not easy to live out of two homes on a 50/50 basis. To visit one parent on every other weekend and see her or him one or two nights for dinner, or at activities, does seem to be easier on the children.

Please realize that all of the above statements regarding joint custody are only the opinion of this writer. However, they are the result of experience gained in over 3 ½½ decades of practicing law - some 21 years of which occurred while the Joint Custody law has been in effect. Also, the above statements presumed normal caregiving skills on the part of both parents. I am familiar with instances where 50/50 time was awarded because it was the lesser of all evils. That, however, is not the norm.