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Joint Custody in Illinois Divorce and Custody Cases

The Gitlin Law Firm, P.C., Woodstock, Illinois    © 2013

Q:I have heard the term joint custody. What does it mean?

A:In parentage or divorce proceedings, lawyers generally are talking about sharing major decisions when they speak about joint custody. Arrangements where time with the children is equally shared is unusual. Illinois divorce lawyers usually call such arrangements joint physical custody.

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Q:What sort of major decisions are we talking about?

A:Illinois law provides that such major decisions involve issues "such as education, health care, and religious training."

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Q:Does joint custody mean that major decisions affecting the children must be shared equally?

A:No. Illinois law does not define what joint custody is other than to state that joint custody is custody based on a joint parenting agreement or order. A joint parenting agreement is an agreement between the parties. A joint parenting order is an order that the judge imposes which is similar to a joint parenting agreement. Joint parenting orders are unusual in Illinois. The joint parenting agreement has to provide three features:

    • First, the joint parenting agreement must state how decisions affecting the children are to be shared.
    • Second, the joint parenting agreement must provide a means of resolving disputes over the agreement. This means of resolving disputes usually includes mediation but mediation is not mandated.
    • Third, the joint parenting agreement must provide for periodic review of its terms.

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Q:That is a lot of technical jargon. Doesn't joint custody really mean one thing?

A:No. For example, while some Illinois lawyers believe that a joint parenting agreement must provide for equal decision making between the parents, this is not true. I tell most clients that there are three levels of input into major decisions. These are:

    • Joint decision making;
    • Consultation as to major decisions;
    • Information as to major decisions.

In Illinois it is more critical for a parent to be aware of what rights a joint parenting agreement may provide as to the major decisions affecting the children instead of merely battling over terminology.  In many cases the parties agree that major decisions must be made jointly.  In other cases, one parent will agree only to consult with the other parent as to major decisions.

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Q:What about religion.   I am Catholic and my husband is Methodist.  How would we resolve this issue?

A:This depends upon the language of a joint parenting agreement.  A 2003 Illinois appellate court case addressed the religion issue:  IRMO Minix.  It suggested that even in cases of sole custody, a custodial parent may not prevent a non-custodial parent from taking the children to the church of his (or her) choosing unless there is a showing of harm to the child.  But this is a complex issue -- especially given the fact that another case,  IRMO Tisckos / Stewart, ruled that if the facts are appropriate the trial court may require that a child be raised in a particular religion [in that case -- the Catholic religion.  That case had held that the, " trial court's order, requiring the father to transport the child to Catholic mass on Sundays and prohibiting him from taking her to any other church, were not "restrictions" on his visitation within the meaning of section 607(c) of the Dissolution Act. Instead, they were permissible "accommodations" to be made by him in the best interest of the child."  Accordingly, if there is a significant issue about religion it is important that you consult with a lawyer as to the language to be included in any joint parenting agreement or marital settlement agreement.

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Q:Are there any resources that you can recommend for parents in considering joint custody or sole custody in terms of how to be aware of the effects of divorce on children?

"A:Yes. Please see my discussion of the effect on divorce and children in terms which is titled “Do's and Don'ts in Custody Cases in Illinois.”  A generally excellent book is the 2010 book "Putting Children First: Proven Parenting Strategies for Helping Children Thrive Through Divorce."

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The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.

The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098


Gitlin Law Firm, P.C.

Updated:  April 23, 2013

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