Thursday, February 26, 2009

Joint Custody in Illinois

A good number of clients walk through my door asking me if Joint Custody is right for them. I have found that there are generally a number of misunderstandings about what Joint Custody really is and when it can be granted. Hopefully, the following sheds some light on the subject.


The Illinois Marriage and Dissolution of Marriage Act allows a court to enter an order granting custody to both parents, i.e., Joint Custody, even when both of the parents are seeking sole custody. Before a court can award Joint Custody, it is required to find that a Joint Custody order is in the best interests of the child in light of a set of specific factors. Further, before entry of the order, the court must see that a Joint Parenting Agreement is produced by the parties, consistent with certain criteria listed by statute. There is no presumption in favor of or against Joint Custody. The only presumption is that maximum involvement and cooperation of the parents is in the best interests of the child.


Prior to the enactment of the new statute, Illinois courts had generally held that Joint Custody orders should rarely be entered due to the fact that such orders are usually unworkable because, unless parents have an unusual capacity to cooperate, substantial disagreement usually arises, ultimately resulting in harm to the child. With the new statute, this presumption against Joint Custody has disappeared. Still, the ability of the parents to cooperate must be examined when Joint Custody is being considered. Specifically, in deciding whether to grant an award of Joint Custody, courts will consider the following: the best interests of the child, agreement of the parents and their mutual ability to cooperate, geographic distance between the parents, desires of the child if of a suitable age, and the relationships previously established between the child and his parents. Since Joint Custody requires extensive contact and intensive communication, it cannot work between belligerent parents.


One of the most asked questions I receive is—“What is Joint Custody?” Before 1986, the statute referred to "joint physical" and "joint legal" custody. The new statute does not use those terms. Instead, a Joint Parenting Agreement, which is an agreement that determines how major decisions affecting the children are to be made, must be devised to define what the parties and court mean by "Joint Custody." A Joint Parenting Agreement is negotiated between the parties and approved by the court. Put simply, Joint Custody means whatever you want it to mean, with a few exceptions. The Joint Parenting Agreement must specify how the child's personal care is to be accomplished by each parent and how the major decisions regarding the child are to be made. The statute does not state that Joint Custody has anything to do with the amount of visitation or parenting time that will be spent with either parent and, more importantly, does not require that major decisions be made jointly. Therefore, it is often possible to avoid a custody battle by agreeing to joint custody but not requiring a party to jointly come to major decisions affecting the children. Instead, what is usually provided is that a party must consult with the other parent regarding these decisions. Illinois case law does define what is meant by "consult" as opposed to "inform," so it is important that your Joint Parenting Agreement specifies which one you are intent on. The Joint Parenting Agreement must also contain a "mediation" or "dispute resolution" clause, and it must provide for some type of periodic review. It should be noted that the release of school and medical information to each parent without regard to custody is automatic under a Joint Custody order, absent an order of protection to the contrary.



This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600