October 30, 2015

Joint vs. Sole Custody During Divorce

Child Custody

If you are facing divorce and have children, determining who gets custody can be the most difficult part of dissolution agreements. There are two types of custody — joint custody and sole custody.

If both you and your ex-spouse are present during the divorce, determining the specifics of a joint custody agreement will likely be part of the divorce proceedings. Custody is not determined by how often one parent or the other spends with the child — and regardless of who is awarded primary custody does not determine the amount of time that the other spouse is allotted to spend with the child.

Because custody arrangements could often seem amorphous, among other reasons, custody laws are changing in Illinois at the beginning of 2016. Instead of one parent being awarded custody of a child, both parents will be given parental responsibility. This means that both parents will work together to make major (and often, minor) decisions that affect the child’s life. This can include, but is not limited to:

  • School decisions (including whether or not the child attends public or private school);
  • Religious decisions for the child (including whether or not the child will partake in religious-specific life steps, such as Catechism or a Bar Mitzvah); or
  • With whom the child spends holidays, such as which set of grandparents.

Joint custody agreements are much more similar to the new law of parental responsibility than sole custody agreements.  When joint custody is arranged, the parent with whom the child does not live full time is, by law, fully responsible for upholding his or her own end of the custody agreement. If the divorce is agreed upon by both parties, it is likely that a joint custody agreement will be required or requested by the state. There is a significant body of research that suggests that joint custody is better for the child, because he or she will then have a court-ordered determinate of time that he or she is required to spend with either parent. This is the case even if the child has primary residence with one parent.

While the vast majority of joint custody agreements delineate that a child will spend at least one-quarter of his or her time with one parent, significant research suggests that even in this scenario, the child spends a substantial portion of time living with each parent. The same research shows that the child’s psyche is not affected by whether or not he or she lives with one legal guardian or parent, but by how often he or she spends with the non-custodial parent.

If you or someone you know is considering divorce and has children, the most important step is to seek legal counsel. Do not go through it alone. Contact an experienced DuPage County family law attorneytoday.