Major changes were made to the Illinois Marriage and Dissolution of Marriage Act in 2016. One major change is that the terms “custody” and “visitation” are no longer used. Instead, these matters are referred to as parental responsibilities and parenting time. Another major change is that Illinois abandoned the guideline method of calculating child support and now uses an income sharing approach to calculate child support. This new method is discussed in greater detail in the Child Support section.
Old Child Custody Law
Custody law in Illinois was previously divided into joint custody and sole custody. The only real difference between these two types of custody was based upon whether one parent would be making decisions with respect to major areas in a child’s life (i.e. “sole custody”), or if the parties would jointly make decisions (i.e. “joint custody”) in the following areas:
Education – choice of school, special programs, or tutors;
Health – choice of doctors, dentists, or mental health providers, and necessary treatments;
Religious upbringing of the child, and;
Choice of extracurricular activities for the child.
Current Child Custody Law: Allocation of “Parental Responsibilities”
Under the new law, decision-making authority regarding major subjects in a child’s life is not automatically granted to one parent or both parents. Instead, in the absence of an agreement, the court determines which parent should be responsible for each subject depending on the specific facts and circumstances of each case.
Best Interests of the Child
The overriding theme in every case involving a child, whether its a divorce case, family case, adoption case, guardianship case or juvenile case, is determining what is in the child’s best interests. If both parents agree it is in a child’s best interest to split and share the different decision-making responsibilities, they can enter into a written Joint Parenting Agreement. If the parents do not agree, the judge will examine the facts of the case and use the best interests standard in reaching a decision by considering all relevant factors, including the following:
The wishes of the child;
The wishes of the parents of the child as to the child’s primary residence;
The interaction and interrelationship of the child with his/her parents, his/her siblings and any other person who may significantly affect the child’s best interest;
The child’s adjustment to his/her home, school and community;
The mental and physical health of all individuals involved;
The physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
The occurrence of ongoing or repeated abuse;
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
Whether one of the parents is a sex offender; and
The terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the U.S. Armed Forces who is being deployed.
Joint decision-making is generally preferred if the court determines that it would be in the best interest of the child while considering the following factors:
The ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child;
The residential circumstances of each parent, and;
All other factors which may be relevant to the best interest of the child.
Joint decision-making does not imply equal parenting time. The physical residence of the child in joint decision-making situations shall be determined by the express agreement of the parents or, if there is no agreement, an order of the court. The parent whose residence has not been designated the child's primary residence is entitled to reasonable parenting time unless the court finds, after a hearing, that parenting time would seriously endanger the child’s physical, mental, moral or emotional health.
Old Visitation Law
“Visitation time” previously referred to the schedule for when the non-custodial parent would have the child in his or her care. The typical arrangement was that one parent was granted “residential custody” or “primary physical possession” of the child. That parent would have the child with him or her the majority of the time. The other parent was referred to as the “non-custodial” parent and would be granted “reasonable visitation”. A reasonable visitation schedule was commonly thought of as alternating weekends, one or two evening visits per week, alternating major holidays, two non-consecutive weeks each summer and on “special days” such as the child’s birthday, Mother’s Day and Father’s day.
Current Visitation Law: “Parenting Time”
Under the existing law, the term “visitation time” has been replaced by “parenting time” for both parents. In the vast majority of cases, a reasonable parenting time schedule for the parent whose residence is not designated the minor child’s primary residence and who does not have the child the majority of the time is the same as under the old law (i.e. alternating weekends, one or two evening visits per week, alternating major holidays, two non-consecutive weeks each summer and on “special days” such as the child’s birthday, Mother’s Day and Father’s day). Ultimately, the only real practical change has strictly to do with the terminology used in divorce and family cases in hopes of eliminating “custody fights” and to avoid establishing “winners” and “losers”. The legislature believed that the assignment of “parental responsibilities” and “parenting time” for both parents was a more appropriate way of resolving issues between parents when relating to the care of their children.