Sole and Joint Decision-Making
by Wes Cowell; updated 28 January 2016
Illinois new law (750 ILCS 5/600 et seq.) changes the term "custody" to "parental responsibility." Parental responsibility covers the big, major decisions that must be made in a child's life: education, health, religion, and extracurricular activities . . . and anything else the parents care about. The law does not affect a parent's day-to-day involvement with his or her own children. Need advice? Call, leave your info, or schedule a consult.
History and Background: Illinois adopted its first joint custody law in 1982. The law defined both “joint legal custody” and “joint physical custody.” The law was revised in 1986 to drop the distinction between legal and physical custoy. Instead, the law spoke of “joint custody” and “sole custody.” Although the law didn't specifically say so, judges and lawyers knew that the word "custody" really meant "decision-making power." The Fourth District Appellate Court put it this way: "Joint custody means joint responsibility and not shared physical custody. It is simply a tool to maximize the involvement of both parents in the life of a child." In re Marriage of Seitzinger, 775 N.E.2d 282, 333 Ill. App.3d 103, 266 Ill.Dec. 720 (4th Dist., 2002).
That one word -- "custody" -- caused a lot of problems for a lot of divorcing and never-married parents. The responsibility for making all child rearing decisions fell to one parent (sole custody -- usually the mother) or the parents had to make every decision jointly. The old law didn't prevent the parents from agreeing to, or the judge from ordering, allocated decision-making of decision-making, but it never happened.
The law was again changed in 2016 (see, 750 ILCS 5/602.5) to replace "custody" with "decision-making" and identifying four significant issues: education, health, religion, and extracurricular activities.
What It Means: For decisions published between 1986 and 2015, you can substitute the term "custody" with the phrase "parental responsibility and decision-making" and those cases are still good legal authority under the new, 2016 law.
Today, Illinois parents are awarded either "joint decision-making power" or "sole decision-making power" for each of the significant issues. Mom and Dad might agree to make all decisions, jointly. They might agree that Mom should be in charge of education, health, and religion while Dad will be responsible for extracurricular activities. Mom and Dad can agree to allocate decision-making for each of the significant issues . . . or the court will allocate the decision-making for them.
Joint Parental Responsibility and Decision-Making Power: If you and the other parent can make decisions about the children jointly, two heads may be better than one and joint parental responsibility may be for you. Indeed, many "sole custodial" parents find out sooner or later that they need the other parent's help, insight, and authority in rearing the child.
Sole Decision-Making Power: Some couples, however, just can't work together. Trying to make decisions jointly creates more problems than it solves. Problems with the kids merely present another opportunity for the parents to quarrel – possibly leading to violence or a return to the judge for a ruling. Those outcomes are what judges hope to avoid. So, for those couples, an award of sole parental responsibility to one parent may be the best resolution.
The Belligerent Parent: About 10% of my clients have to deal with a belligerent parent. The belligerent parent thinks that creating conflict and refusing to communicate or cooperate will demonstrate to the court that the parties are incapable of cooperation and co-parenting. I handle sabotage like this all the time. There are plenty of strategies to defuse such situations. There are plenty of strategies to redirect the sabotage to backfire on the saboteur. If you're dealing with a belligerent parent, call my office to get things under control and get the kids taken care of.
Court-ordered Joint Parental Responsibility : Illinois law (750 ILCS 5/602.5(b)) gives judges the power to award joint parental responsibility and decision-making to parents even after a contested trial where the parents do not agree. "The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child." 750 ILCS 5/602.5(b). Such awards have been tolerated in the 1st and 2d Appellate Districts, but have been frowned upon in Illinois' 3rd, 4th, and 5th Appellate Districts. In re: Marriage of Swanson, 656 N.E.2d 215, 275 Ill.App.3d 519 (Ill. App. 4 Dist., 1995) summed it up:
"The propriety of such an arrangement is dependent upon the following: the best interests of the child, agreement of the parents and their mutual ability to cooperate, geographic distance between the parents, desires of the child if of a suitable age, and the relationships previously established between the child and his parents." Drummond, 156 Ill.App.3d 672, 679, 109 Ill.Dec. at 51, 509 N.E.2d at 712.
In In re Marriage of Manuele, 107 Ill.App.3d 1090, 63 Ill.Dec. 760, 438 N.E.2d 691 (4th Dist., 1982), this court discouraged the award of joint custody, specifically noting that such orders are usually unworkable and should rarely be entered. The court noted that unless parents have an unusual capacity to cooperate, substantial disagreement will likely arise, ultimately resulting in harm to the children. (Manuele, 107 Ill.App.3d at 1094-95, 63 Ill.Dec. at 763, 438 N.E.2d at 694.) As a result, in Manuele, we reversed and remanded the case with specific directions to have custody vested in one parent subject to visitation. (Manuele, 107 Ill.App.3d 1090, 63 Ill.Dec. 760, 438 N.E.2d 691.) Courts have also reversed joint custody orders in In re Marriage of Bush, 191 Ill.App.3d 249, 138 Ill.Dec. 423, 547 N.E.2d 590 (4th Dist., 1989), In re: Marriage of Drummond, 156 Ill.App.3d 672, 109 Ill.Dec. 46, 509 N.E.2d 707 (4th Dist., 1987), Kocal v. Holt, 229 Ill.App.3d 1023, 172 Ill.Dec. 106, 595 N.E.2d 169 (3rd Dist., 1992), and In re Marriage of Pool, 118 Ill.App.3d 1035, 74 Ill.Dec. 458, 455 N.E.2d 887 (3rd Dist., 1983), where the evidence showed that the parents had too much animosity to be able to cooperate.
In re: Marriage of Swanson, 656 N.E.2d 215, 275 Ill.App.3d 519 (Ill. App. 4 Dist., 1995)
On the other hand, there are cases that have affirmed the trial court's forcing a Joint Parenting Order on parents who each sought sole custody. In In re Marriage of Seitzinger, 775 N.E.2d 282, 333 Ill. App.3d 103, 266 Ill.Dec. 720 (4th Dist., 2002) each parent sought sole custody but the trial court entered an award of joint custody after a contested trial.
The law recognizes that enormous stress is brought upon couples going through a divorce or break up and fights are bound to crop up. Nearly all parents can agree, however, about the major decisions that affect the rearing of their children. My experience has been that where joint decision-making is attempted amidst feuding parents, things almost always calm down and work out not long after the divorce case is concluded. Where the contest is resolved by an award of sole decision-making, however, the likelihood of future cooperation are almost always diminished to nil.
Child Rearing Decision-Making
Illinois' new Parental Responsibility law (SB- 57) went into effect 1 January 2016. It abolished the concept of "child custody." Instead, the court allocates between Mom and Dad all child-rearing decision-making. Instead of having "sole custody" or "joint custody," we now allocate between Mom and Dad decision-making power in four important areas of child rearing." Need advice? Call, leave your info, or schedule a consult.
The New Law: Illinois no longer recognizes the concept of "child custody." Instead, the new law (750 ILCS 5/602.5) allocates between the parents the child-rearing responsibilities and major decision-making.
The law recognizes four significant issues for major decision-making, but allows wiggle room to include other areas. The law says:
Unless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities . . . 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 relaing to the medical, dental, and psychological needs of ht echild and to the treatments arising or resulting from those needs.
(3) Religion, subject to the following provisions:
(A) The court shall allocate decision-making responsibilities 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 parties past conduct as to the child's religious upbringing in allocating decision-making responsibilitiesconsistent with demonstrated bpast conduct in teh absence of an express or implied agreementbetween the parents.
(C) THe court shall not allocate any aspect of the child's religious upbringing if it determines that eh pare parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to deomstrate a course of conduct regarding the child's religious upbringing that could serve as a basis for any such order.
(4) Extracurricular activities.
The Parenting Plan / Allocation Judgment: Illinois law requires parents to try to come to an agreement about the decisions they'll have to make in rearing their children. That's called the "parenting plan." 750 ILCS 5/600 (f). If the parents cannot agree, the court will determine the parents' respective righs and resposibilities. That's called an "allocation judgment." 750 ILCS 5/600 (b). Parenting plans and allocation judgments must lay out a parenting schedule and determine whether one or both parents will be involved in determining the extra-curricular activities of the children.
Education: Someone has to decide whether the kids attend the local, public school or a private school; whether a tutor is called in, whether a child attends summer school, etc. The parenting plan / allocation judgment must say whether one or both parents will make these decision. Regardless of the allocation, parents still have to do what they have to do regarding homework and cracking the whip.
Extracuricular Activities: If EC decision-making is vested in one parent, that parent calls the shots and that's all there is to it. If EC decision-making is vested in both parents, they must work together. When signing their kids up for ECs, parents with joint decision-making power must cooperate regarding
the substance and nature of the activity,
covering the cost of the activity, and
the practice and performance schedule for the activity.
Parents sometimes strongly disagree about certain activities (consider, for example, weighing risk of brain injury in youth football). Costs, too, can create problems when parents are not on equal financial footing. The greatest numer of conflict involving extra-curriculars, however, when they conflict with the parenting schedule. EC schedules can wreak havoc on the parenting schedule.
Every kid is different, but many judges follow a rule of thumb (not articulated in the law) that a cild should enjoy two extra-curricular activies at any given time: one cultural (music or dance lessons?) and one athletic (soccer or baseball?).