The Fallacy Of What Was Joint Custody

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. It means 50-50 decision making ability for certain child rearing items.

"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.

It is just words. The father does not get any additional visitation by virtue of being named as a joint custodial parent.

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 typically did not nurture well in a 50/50 time sharing arrangement. They said that children do the best when one parent serves as the primary caretaker or residential parent and the other parent is the visiting parent.

... children may not nurture well in a 50/50 time sharing agreement

They recommended that children be 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. The belief was that living out of two homes on a 50-50 basis could be confusing or detrimental to the children stability.

However, that was over 20 years ago and the world has changed quite a bit since then. Women are now much more entrenched in the workplace and men have become much more involved in the children's day-to-day upbringing. Parental roles seemed to have narrowed to some extent. Many dads now work out of the home and many moms are now the parent with the long hours or the long commute. Today's dads are choosing to live much closer to the children than in the past. Twenty years ago, dads (and moms) didn't coach their children's sports activities like they do today and children didn't seem to have the same need to be driven "everywhere" as they do today. People's daily lives weren't as hectic back then. Today, it seems that women's and children's lives have become as busy as dad's was twenty years ago when it was (typically) the father who had the long hours and the schedule that prevented spending more time with the children.

As our lives have changed, so has the trend of our legal system (and of the care-giving community) when it comes to parenting time. Depending on the facts and circumstances of each family, we now see many 50-50 and 55-45 (or thereabouts) shared living arrangements. However it is not the mere title of "Joint Custody" in and of itself that is giving fathers more time with the children. Many attribute the changes in parental roles to the Women's Movement which is now over 30 years old.

Designations of "Custody" & "Joint Custody" to be Eliminated

Our Custody law in Illinois is expected to change in the early part of 2005 to eliminate the terms "custody," "visitation," "sole custody," "joint custody". The new law substitutes the term "parenting time" in place of all former designations.

The use of parenting time incorporates the philosophy that both parents remain in the status of parents subsequent to the dissolution. Under the new statute, there is an allocation of not only parenting time, but allocation of parental responsibilities. If the parties are unable to agree, the statute gives the courts the flexibility to establish parenting responsibilities among the parents such that no parent is left out in the cold when it comes to parenting their children. The new statues will hopefully eliminate the concept of wining or losing in a custody battle when most people involved in such litigation recognize that the only guaranteed losers are the children.

The courts in the new statute are given better guidelines to establish parenting times by infusing realistic criteria into the statute to be used to determine what is best for the children. The criteria established in the new statute is set about to allow the parties and/or the court to realistically assess the appropriate parenting time for each party and the allocation of responsibilities. Some examples of the new statutory provisions the court would use are:

• An emphasis on the willingness and ability of each party to place the needs of the child ahead of their own needs.
• Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment and mutual support.

The new statute encourages agreement between the parties without the distasteful labeling of parents as custodial or non-custodial parents. The new statute also addresses societal changes that are not currently embodied in the existing legislation. Children are now involved with persons acting with the capacity of a parent but who are not their biological parent. The courts now must address issues concerning stepparents who have developed strong relationships with children of their partner; unmarried couples residing together and raising the children of divorced parents; and same-sex partners acting in the capacity of residential parents to the children. The new statute embodies a mechanism for a court to address issues created by persons acting in the capacity of parents toward children even though they are not the biological parents.

The statute also seeks to remedy problems that have developed by the mobility of society in addressing the problems associated with parenting time and responsibilities when children move intrastate or interstate. Enforcement provisions have been enhanced and an overall theme of parental involvement, cooperation and agreement have been infused throughout the statute.

A panel of the Illinois Bar Association has spent the last 2 years putting together these and the sweeping revisions of our custody law. The proposal is expected to be voted on in Dec. 2004. If approved the law should change in spring-summer 2005.

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