Illinois Removes Custody from Family Law: No More Custody Battles

Illinois removes custody from custody law/Photo by luiisrtz from Pexels

In 2016, Illinois did something brilliant – it removed the word “custody”‘ from its family law, codified in the Marriage and Dissolution of Marriage Act. Instead of “custody” (legal and physical, sole and joint), Judges will now assign parental responsibility and parenting time to the parents. No more “Custody” battles!!! Instead, parents can litigate over “parental responsibility” and “parenting time”.

Illinois, I love you.

As a family law attorney for almost 20 years, I can’t tell you how ugly the word “custody” is to me. It sounds criminal: as in, the police held him in custody for further interrogation. And it is not a good word to describe both parents’ relationship to the child. It furthers the misconception that custody can be “won” like it’s a good thing in Court. It continues the fantasy that you can seek revenge in Court. And that you can use your children as revenge!

In California, in a separation with children, the default best interest of child is frequent and continuing contact with both parents. Over the years, people have fought over who has “custody” and who has “visitation”. People equate “visitation” as the ugly step-sister, even though visitation IS physical custody. It’s just too confusing and engenders bitterness.

Here is the new custody law in Illinois, all written out. I love it. I want to rap to it.

(750 ILCS 5/602.5)
Sec. 602.5. Allocation of parental responsibilities: decision-making.

(a) Generally. The court shall allocate decision-making responsibilities according to the child's best interests. Nothing in this Act requires that each parent be allocated decision-making responsibilities.

(b) Allocation of significant decision-making responsibilities. Unless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities, or the issue of the allocation of parental responsibilities has been reserved under Section 401, the court shall make the determination. The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child. Those significant issues shall include, without limitation, the following:

(1) Education, including the choice of schools and

tutors.

(2) Health, including all decisions relating to the

medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.

(3) Religion, subject to the following provisions:
(A) The court shall allocate decision-making

responsibility for the child's religious upbringing in accordance with any express or implied agreement between the parents.

(B) The court shall consider evidence of the

parents' past conduct as to the child's religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents.

(C) The court shall not allocate any aspect of

the child's religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child's religious upbringing that could serve as a basis for any such order.

(4) Extracurricular activities.

(c) Determination of child's best interests. In determining the child's best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:

(1) the wishes of the child, taking into account the

child's maturity and ability to express reasoned and independent preferences as to decision-making;

(2) the child's adjustment to his or her home,

school, and community;

(3) the mental and physical health of all individuals

involved;

(4) 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;

(5) the level of each parent's participation in past

significant decision-making with respect to the child;

(6) any prior agreement or course of conduct between

the parents relating to decision-making with respect to the child;

        (7) the wishes of the parents;
        (8) the child's needs;
        (9) 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;

(10) whether a restriction on decision-making is

appropriate under Section 603.10;

(11) the willingness and ability of each parent to

facilitate and encourage a close and continuing relationship between the other parent and the child;

(12) the physical violence or threat of physical

violence by the child's parent directed against the child;

(13) the occurrence of abuse against the child or

other member of the child's household;

(14) 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

(15) any other factor that the court expressly finds

to be relevant.

(d) A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child's health and safety during that parent's parenting time.

(e) In allocating significant decision-making responsibilities, the court shall not consider conduct of a parent that does not affect that parent's relationship to the child.

(Source: P.A. 99-90, eff. 1-1-16.)

Illinois removes custody