States Debate over Child Custody Laws

 Posted on July 09, 2014 in Family Law

Child Custody

The Illinois Marriage and Dissolution of Marriage Act is the law that governs how child custody is determined in Illinois. When we think of the word “custody,” we sometimes view it in terms of the time spent with a child regardless of whether the courts award joint or sole custody. However, custody in Illinois actually has to do with determining which parent has the decision-making power over the child. The length of time a parent spends with the child is not the focus of the determination.

Types of Custody 

There are two types of custody in Illinois: sole custody and joint custody.

Sole Custody

Sole custody refers one parent having the right to make all major decisions for the child. These decisions include health care options, where the child goes to school, and what religion the child will take.

Joint Custody

Joint custody refers to both parents having the right to equally participate in all major decisions for the child. This requires a situation in which both parents demonstrate a willingness and ability to work together in the best interest of the child. This includes all the same decisions awarded with sole custody. However, if there is a medical emergency, both parents must approve what course of action will be taken. The physical time spent with each parent does not need to be split evenly. Generally, when joint custody is awarded, the child will reside mostly with one parent. This parent receives what is known as “residential custody.” The residential custodian is often awarded child support from the non-residential parent.

How is Custody Determined by a Court?

A court will decide what is in the best interests of the child when awarding custody. There are several factors the court will review to make this determination, including:

• What the parents’ want;
• What the child wants;
• How the child interacts with his or her parents, siblings, and other close family members;
• How the child is adjusting to the home, school, or local environment;
• The mental and physical health of all parties;
• Any threat to the child’s physical or emotional health in either home environment. This can include physical, verbal or emotional abuse by anyone towards anyone;
• How the parents interact with each other; and
• The sex offender status of either parent.

National Debate on Changing Child Custody Laws

Advocates for changes in the current law argue that the best interests of the child means equal time or more evenly distributed time spent with both parents. These advocates are against laws awarding sole custody to one parent, and would like the law to spell out a minimum percentage of time a child should spend with each parent.

However, those who are in favor of the status quo, like the Cook County Public Guardian’s Office and Illinois State Bar Association, argue that having strict requirements about custody will take away a judge’s ability to determine the best interests of the child. They fear a cookie cutter answer will not allow the judges to make critical decisions about the child’s welfare.

Illinois is one of seven states currently dealing with legislation proposing changes to the laws as part of a larger national debate on the issue. The most recent legislation proposed in Springfield would ask judges to consider equal time for both parents but would not make it a requirement. It would also create a 90-day deadline for custody disputes. The most recent proposal was approved by the House in April and is now in the Senate for debate.

Resources

An experienced attorney will always stay abreast of national and state laws regarding child custody and other family law matters. For more information about family law issues, please contact the experienced Lombard family law attorneys at Mevorah & Giglio Law Offices.