One of the most difficult and important aspects of a divorce is custody of the minor children. While parents who divorce are not “divorcing” their children, separating from a spouse means that your children will not live with either of you all of the time. In this sense, there is an actual separation from the children.
There are two forms of child custody under Illinois law: “Sole Custody” and “Joint Custody”. There are common misunderstandings of these terms that cause divorcing parents anxiety and confusion. Two of the most common misunderstandings are 1) that a parent with “sole custody” has all of the parental rights and that the other parent has no parental rights; and 2) the belief that a parent with “sole custody” can freely move out of state. Both of these beliefs are very threatening for a parent.
What is Sole Custody?
A parent with sole custody has the right to make all major decisions regarding the care of the children without discussing these decisions with, or obtaining consent from the other parent. The divorce judgment will set forth the non-custodial parent’s schedule of time with the children.
The non-custodial parent has general parental rights. In addition to parenting, or visitation time, the non-custodial parent has a legal right of access to health and school records. Sole custody is awarded to one parent when the parents are unable to communicate effectively enough to make joint decisions regarding the children. It is not, in most cases, a determination that the non-custodial parent is unfit. A parent might have visitation restricted and/or be prohibited from access to a child’s records if there is an Order Of Protection. Visitation might also be restricted if a court finds that visitation would seriously endanger the child’s physical, emotional, or mental health. Such situations are the exception, not the rule.
What Is Joint Custody?
Parents who share joint custody of their children create a written plan called a Joint Parenting Agreement. The Illinois Marriage And Dissolution Of Marriage Act sets forth minimum requirements for a Joint Parenting Agreement. The agreement must provide for the physical residence of the children. In order to do this, the parents agree upon a written schedule of each parent’s time with the children during the week, weekends, holidays, vacations and special occasions. This is usually called a “visitation schedule” or a “parenting schedule”. There is no requirement that each parent have equal time with the children.
A Joint Parenting Agreement must also set forth each parent’s powers, rights and responsibilities for the care of the children. There will also be reference to areas of joint decision-making. At a minimum there will be joint decisions on religious upbringing, health care and education. It is common for parents to include additional areas of joint decision-making. For instance, they may decide to make joint decisions on extra-curricular activities, camp and social activities. Some parents include areas based on their particular concerns and values. Other parents include only the minimum required terms.
Another required provision in a Joint Parenting Agreement is a dispute resolution procedure for mediating any disagreements regarding parenting issues. In addition there will also be a process for the parents to follow for any proposed changes to the agreement. If the parents are unable to resolve a dispute after following the procedures in their agreement, they may then bring the issue before a judge.
Out Of State Moves With The Children
If a parent with sole custody wants to move out of state with the children, it is necessary to obtain the consent of the other parent or an order from a judge allowing the move. A parent with joint custody of the children must also obtain the consent of the other parent or an order from a judge in order to move out of state with the child.
How Does This Information Apply To You If You Are Divorcing?
The information provided here is a very general overview of a complex topic and is not meant to be legal advice. If you are contemplating a divorce, it is important for you to seek the advice of an attorney if these are issues of concern to you.
Roselynn Don
Law Office Of Roselynn Gilbert Don
2530 Crawford Avenue Suite 106
Evanston, Illinois
(847) 869-9720
