On January 1, 2016, the State of Illinois substantially revised its former custody law. The amended law drastically changed how the courts award parties “custody” of and “visitation” with their children by doing away with these terms entirely. Essentially, the new law replaced the term “custody" with “allocation of parental responsibilities,” the term “visitation” with “parenting time,” and the term “custody judgment” with “allocation judgment” or “parenting plan.” The intent of this law is to make it harder for one parent to alienate the other from their child by taking over all decision making and providing minimal visitation. In other words, the intent of the law is to ensure both parents are as involved in the child's life as possible. The legislature also intended to make these concepts sound more palatable to the parties in an effort to avoid parents the embarrassment and grief of feeling as if they have “lost custody” of their child. Now that the law is nearly a year and a half old, we can ask ourselves, “is the law working as intended?” In this three part blog series, we will explore the answer to this very question. In order to answer this question, we must first understand how the former custody law operated and why these changes were made.
Prior to enacting the Parental Responsibilities law, parties were awarded “custody” of their child and “visitation” with their child. Under the old custody law, there were two different types of custody: joint custody and sole custody. Joint custody was just as it sounds — both parents were awarded an equal right to make important decisions regarding their child and would have to consult the other parent before making any significant decisions regarding the child. On the contrary, if a party was awarded sole custody, that party had the unfettered right to make all important decisions regarding the child without consulting the other parent. The other parent could only make mundane decisions regarding the child while the child was in that parent's care.
Another important concept under the old custody law was the “residential custodian.” Under the old law, one parent was awarded “residential custody” of the child, meaning the child resided with that parent for a majority of the time. If a parent was awarded “residential custody” of the child, that parent was considered the “residential custodian” or the “custodial parent” of the child, whereas the other parent was considered the “non-custodial parent.” The law considered the child to be living with the residential custodian and thus, in practice, the residential custodian almost always had a majority of the parenting time with the child. Although the other parent would still be awarded scheduled “visitation” with the child, the child legally lived with the residential custodian. Pursuant to the old custody law, one of the parties had to be named the residential custodian regardless of whether the parties were awarded joint or sole custody of the child. Thus, even if a parent had joint custody of their child, it was possible that same parent would be considered the “non-custodial parent” of the child and would have less parenting time than the other parent.
The concept of the “residential custodian” presented several issues for the parties and the court. One issue is that it became commonplace for one parent to completely control all important decisions regarding the child even if the parties were awarded joint custody. In theory, if the parties had joint custody of their child, the parties were supposed to work together and jointly make decisions regarding their child, despite being separated and regardless of the non-custodial parent's visitation schedule. In practice, however, this was not always the case. Oftentimes, the custodial parent would make important decisions regarding the child without consulting the non-custodial parent simply because the custodial parent typically had more access to the child and was able to get away with it. This presented an obvious issue where one parent had control over the child and the other did not. Also, the non-custodial parent was labeled as having “lost custody” even if that parent had joint custody and was able to make all important decisions regarding the child.
Another related issue is that, under the old law, oftentimes a parent would get minimal parenting time with their child even if there was no reason for it. Because one parent must be awarded “residential custody” of the child and the child was considered to be residing with that parent, the other parent was only entitled to “visitation.” Under the residential custody model, the non-custodial parent's visitation was often limited to alternating weekends and a few overnights every week, unless the parties agreed to a more liberal visitation schedule. The new law seeks to eliminate these issues by redefining these terms and changing how “custody” is awarded to the parties. In Part II of this series, we will discuss how the new law works towards the elimination of these issues.