Joint Custody vs. Sole Custody
& Residential Parent Status - Who gets the Kids?

 Joint Custody vs. Sole Custody

Often, divorcing couples with children are most concerned over matters relating to custody and visitation. At ISABEL M. MILLARD we work closely with many allied professionals (child psychologists and evaluators) to ensure that our custody and visitation agreements serve the best interests of the children as well as the parents.

Illinois recognizes two basic forms of child custody: joint custody and sole custody. Joint custody has gained both notoriety and popularity over the past several years. At its best, joint custody allows for the maximum involvement of both parents in the lives of their children - signaling to the children that, despite their parents' differences, their needs are what is most important. At its worst, joint custody can serve as a source of ongoing disagreement and litigation between the parties - signaling to the children that they are merely pawns in their parents never-ending battles.

Successful joint custody is not easy. It takes hard work, dedication and a great deal of compromise. Children grow and change and their needs fluctuate year to year. As such, the Parenting Agreement that made perfect sense at the time of the divorce must be reviewed and updated regularly. If parents are not willing to recognize this simple fact and work together for the best interests of their children, joint custody will not be successful.

Joint custody requires parents to consult and cooperate on all significant matters concerning the children - education, health care, religious training, etc. If the parties did not co-parent the children during the marriage, there is little reason to believe that joint parenting will occur after the divorce.

A common misperception among parents is the notion that joint custody means equal parenting time. Not so. Parenting time for the non-custodial parent is the same in both sole and joint custody situations. Another common misperception is that an award of joint custody will prevent the custodial parent from moving out of state with the children. A custodial parent cannot unilaterally move out of state absent agreement of the other parent or an order of Court, regardless of whether he or she holds joint or sole custody of the child.

joint physical custody

 Residential Status - Who Gets the Kids?

The Court can award joint custody only when such an arrangement serves the best interest of the child. When the parties are in agreement about joint custody, they will enter into a Joint Parenting Agreement. One parent will be designated as the "residential" parent with whom the child resides. Child support is paid to the residential parent, in the same amount as paid to a parent having sole custody. Residential status does not confer additional rights to that parent. It simply indicates with whom the child resides after the divorce.

The Judge is mandated by law to consider the following items when deciding which custodial arrangement serves the best interest of the child:

  1. the wishes of the child's parent or parents as to his custody;
  2. the wishes of the child as to his custodian;
  3. the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
  4. the child's adjustment to his home, school and community;
  5. the mental and physical health of all individuals involved;
  6. the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
  7. the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
  8. the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child".

(750 ILCS 5/602).

If the parents cannot reach an agreement on custody, the court can require the parties to attend mediation. The mediation process is used to assess what is in the best interests of the children as far as custody and visitation arrangements are concerned. A mediator is a neutral third party who helps the parties reach their own agreement. Please see our page on mediation for further information.

If the parties cannot agree on custody (and mediation is unsuccessful), the court will order a custody evaluation. First, the Court will appoint a custody evaluator. A custody evaluator is a psychiatrist or psychologist with special training and expertise in custody issues. The evaluator will meet with each of the parents separately, conduct psychological testing of each parent (and possibly the children), observe each parent interacting with the children, interview the children and others familiar with the family (i.e. teachers, therapists, doctors, family members). Once the interview portion is concluded, the custody evaluator will write a detailed report to the Court, making specific recommendations about who should receive custody and what visitation arrangements are in the children's best interests. The custody evaluator is the Court's witness, thus, the Judge will give great weight to the evaluator's recommendations in making the ruling. The cost of the custody evaluation is usually borne by the parties, in proportion to their respective incomes. If either mother or father does not agree to the custody evaluator's recommendations, a second custody evaluation, with a new evaluator, may possibly occur. The cost of the second evaluation is always borne by the party requesting same.



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Isabel M. Millard, PC
100 S. York
Suite 220-224
Elmhurst, Illinois 60126
Phone: 630-279-2229
Fax: 630-279-2252

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