Is Illinois the Trendsetter for Child Custody Vocabulary?
What’s in a name? When it comes to child custody, terminology can make a vast difference in how a parent is viewed by the child, the spouse, and society at large. When the courts say that one parent has “custody” and the other parent has “visitation,” it may feel like one parent is a “winner” and the other is the “loser” in a custody dispute. To eliminate this unfairness, on January 1, 2016, Illinois became a trendsetter by changing terms like “custody” and “visitation” in divorce and parentage cases.
THE OLD TERMS AND WHAT THEY MEANT:
Custody: In the past, the term “custody” referred to two things:
1) Legal custody – The courts would determine one parent to have decision-making authority regarding the children for major parenting issues: the child’s education, religious preferences, what activities the child could participate in, and what healthcare providers to use.
The courts might give one parent “sole custody” — the right to make these decisions — or the courts might give both parents “joint legal custody,” where they would be required to make these decisions together.
2) Residential custody – The determination of which parent the children lived with the majority of the time. In some cases, parents might have “split custody” or “shared custody,” where the children spent 50% of the time with each parent, but often children would live most of the time with one parent and the other would be granted “visitation”.
Visitation – This term was used to refer to the time the parent who did not have residential custody could have their children. The courts would set up a visitation schedule, which was often alternating weekends, some time or overnight on one day during the week, and alternating holidays.
WHAT ARE THE NEW TERMS
The revised Illinois Marriage and Dissolution of Marriage Act changed this vocabulary as follows:
Parental Responsibility – This is the new term for custody. The courts now refer to the decision-making issues for the child as the “allocation of parental responsibilities.” As before, one parent may still have most of the decision-making responsibilities, or these responsibilities may be split between the parents.
Parenting Time – This wording is the new term for visitation. Again, the children may spend most of their time with one parent, or they may split their time fairly evenly with both. However, neither parent is labeled as primary or is made to feel as the secondary parent. The term “visitation” may still be used in situations such as when dealing with third parties, such as with “grandparent visitation.”
WHAT THE CHANGES MEAN FOR PARENTS
The new vocabulary in the Illinois Marriage and Dissolution of Marriage Act has the goal of not diminishing the parent who has less parenting time and of allowing that parent to still be equal in making decisions. Still, whatever the vocabulary, the issues are same: deciding how much time the children will spend with each parent and which parent will have decision-making authority for the major issues in the child’s life. This must be determined in every case according to the specific arrangement that would be in the individual child’s best interests.
DETERMINING CHILDREN’S BEST INTERESTS
In setting up the allocation of parenting time and allocation of parental responsibilities, the courts will consider factors such as the following:
- The wishes of both parents
- The wishes of the child, depending on age and maturity
- The amount of time and resources each parent has put into taking care of the child in the preceding two years
- Prior agreements between the parents
- The relationship between each parent and the child
- The interaction between the two parents and any other adult who may significantly affect the child’s interests
- The distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement
- The mental and physical health of the parents
- Any adjustments a child must make in communities, schools, and homes.
Parents are free to come to an arrangement regarding parenting time and responsibilities on their own, which is almost always preferable to litigation. If both parents agree on how to split and share the different responsibilities, they can enter into a written parenting agreement. If the parents do not agree, the judge will examine the facts of the case, and use the best interests of the child standard in reaching its decision.
The facts and circumstances of each case are different, and since issues are so complex and vital to a child’s well-being, it makes sense to seek legal counsel. The skilled family-law attorneys at Wolfe & Stec, Ltd., can guide you through the process of seeking parental responsibility and time. We represent and advise clients in all types of child custody matters.
For a free initial consultation with an experienced and compassionate DuPage County custody lawyer, contact us online or call 630-305-0222. Visit our firm’s child custody information center for valuable background information for a free initial consultation.