Historically, family law courts drew a distinction between legal custody and physical custody when deciding child custody issues.
Legal custody referred to a parent’s rights and responsibilities to make decisions for their child regarding their safety and wellbeing. For instance, a parent with “legal custody” had the right to sign contracts on behalf of the child, especially when it came to educational and medical matters.
In contrast, physical custody concerned a parent’s rights and responsibilities in residing with the child and being physically present to conduct parenting responsibilities such as taking the child to school, such as preparing meals for them and sharing a residence where they slept under the same roof.
In 2016, provisions in the Illinois Marriage and Dissolution of Marriage Act (IMDMA) were amended, re-terming legal custody and physical custody as parental responsibility for “decision making” and “parenting time.” When parents share decision-making authority, one parent may not unilaterally make certain decisions for the child without the other parent.
Types of Decision-Making Allocations
Parental responsibility for decision-making can be shared between parents, or granted solely to one parent. In cases where responsibility for physical parenting time is equally shared by both parents, it is possible that the court will likewise allocate decision-making responsibility between parents equally.
The exact details of a court order for parental decision-making responsibility depend on the circumstances of each case. Illinois courts will consider certain factors when making a decision about how to divide decision-making authority.
Section 602 of the IMDMA is the statute governing parental responsibility for decision making, requiring courts to consider factors concerning the best interest of the minor child.
Courts must consider the following factors under Section 602.5 when deciding how to distribute parental responsibilities:
- “the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;
- the child’s adjustment to his or her home, school, and community;
- the mental and physical health of all individuals involved;
- the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
- the level of each parent’s participation in past significant decision-making with respect to the child;
- any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
- the wishes of the parents;
- the child’s needs;
- 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;
- whether a restriction on decision-making is appropriate under Section 603.10 [750 ILCS 5/603.10];
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- the physical violence or threat of physical violence by the child’s parent directed against the child;
- the occurrence of abuse against the child or other member of the child’s household;
- whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
- any other factor that the court expressly finds to be relevant.”
One of the significant factors that can affect how courts allocate parental decision-making responsibilities involves the parent’s ability or inability to cooperate. Naturally, if parents have effective communication skills and a decent capacity to cooperate with each other, a court will be more inclined to allocate decision-making authority between divorcing parents equally.
As a result of the 2016 amendments to the IMDMA, Illinois courts will now also factor the residential circumstances of the parents, such as how far they live from each other as well as the logistics of exchanging custody of the child.
Contact the Law Offices of Jonathan Merel, P.C.
Illinois family law is in flux concerning the care of children and the division of parental responsibilities between divorcing parents. As a result, it is in your best interest to consult a family law attorney with experience in matters concerning the allocation of parental responsibilities in Illinois. At the Law Offices of Jonathan Merel, P.C., you can count on our legal team to monitor changes in Illinois family law and provide you with quality legal counsel and advocacy that is informed by recent developments in Illinois family law.
To schedule a consultation, call us at (312) 487-2795 or contact the Law Offices of Jonathan Merel, P.C. online today.