Custody: Defined

"Custody" is the term applied, and often, misapplied, to the "care, control, and maintenance of a child awarded by a court" (Black's Law Dictionary, 8th Ed. 2004). Therefore, for an issue of custody to exist you need a child, someone to award the custody of the child to (a parent, in most instances, but if both parents are unfit, it may the State) and a Court.

What is a child? A child is a person that is a minor under Illinois law. Illinois law, for purposes of granting custody, considers a minor to be a person that (1) has not reached the age of eighteen years, with exceptions, and (2) is not otherwise emancipated. An exception to factor (1) is a person that has been adjudicated disabled because he or she is unable to care for him or herself. A child may become emancipated, and thus, stop being a minor, by proceeding under the Emancipation of Minors Act. However, such instances and exceptions are beyond the scope of this Posting.

It should be noted that a child, while technically having reached the age of majority, eighteen, and so no longer being a minor, does not free the parents from the responsibility of financial support. This will be subject of a separate Posting.

Having defined what a child is, we look at the other criteria: the parents and the Court. For these criteria to be present, there must be a court proceeding, wherein the court has jurisdiction of the parents. Jurisdiction is the court's authority to order someone to do something, and will be subject of separate Posting. Typically, there are two types of proceedings when the court has jurisdiction to grant: (1) divorce or legal separation and (2) parentage (action to establish a paternity or father-child relationship). If there is no proceeding, the court does not have jurisdiction, and therefore, the parents are free to determine how to exercise the care, control and maintenance of their child.

Assuming that we have parents with a minor child, involved in a divorce, legal separation or parentage action, what will the court award when when it awards custody?

There are two types of custody: (1) legal custody and (2) physical custody. Legal custody is the right of a parent to make decisions regarding the child's life in three main areas: (1) healthcare, (2) religion and (3) education. These are major decision, such as, whether or not to administer a medical procedure, attend a religious establishment or switch schools.

Legal custody comes in two varieties: (1) sole and (2) joint. Sole (legal) custody is the right to make all major decisions regarding the child's life. Joint (legal) custody is the right to make these decisions jointly with the other parent. Consequently, in the case of joint custody, neither parent can make these decisions without the other parent's agreement or a court order.

In Illinois, as in most of the U.S., joint custody is the most common arrangement. This is a recognition that at least most of the time two heads are better than one.

The other type of custody is physical custody, sometimes referred to as residential custody. Physical custody comes in two varieties: (1) primary residential custody and (2) shared residential custody.

The most common, and until a few years ago, almost the only known arrangement, is primary residential custody. What it amounts to is one parent being named as primary custodial parent (sometimes referred to as residential parent). The child resides primarily with that parent and the other, the non-custodial parent, receives parenting time (sometimes referred to as visitation) with the child. The non-custodial parent pays child support to the custodial parent, a subject of another Posting.

A typical schedule would look something like this: the child resides with the primary residential parent all the time except when the child is with the non-custodial parent; the child is with the non-custodial parent on alternating weekends, from Friday after school until Sunday evening, and on one weekday per week from after school until evening. However, it cannot be overstressed that this schedule can be modified to almost anything that the parties agree to and that can reasonably be supported as being in the child's best interests.

The second and less common arrangement of shared residential custody (also referred to as split residential custody) basically translates into each parent having equal or substantially equal parenting time with the child. This may be that the child alternates residences every week, or every two weeks or every month. In this arrangement, if the parents' incomes are substantially similar, child support may be reserved (neither party pays to the other party) and each is responsible for all expenses during his and her parenting time.

For the latter arrangement to work, and to be approved by the court, the parents must be sure that they can cooperate to the fullest extent. They must be confident that they can continue to have their lives completely intertwined, without the marital relationship, and focus on the best interests of their child. This is why, if the parties are not in agreement, the court will not order shared residential custody. How the court decides issues of custody will be subject of another Posting.

Most custody issues are, in the end, determined by the parties, who tend to opt for agreement. There are numerous things to consider when addressing custodial arrangement in your situation, but perhaps the main one is that that with very limited exceptions, mainly that of serious endangerment to the child, the other parent will have the right to parenting time. For example, if you have sole custody and you are the primary residential parent, the other parent will have visitation, and most likely, overnights at least every other week with the child.

Therefore, if the main concern is the other parent's personality or tendency to badmouth you, fighting for sole over joint custody will not solve anything. On the other hand, if the other parent is at least tolerable during his or her parenting time, but will not agree on any academic issues regarding your child, your ability to make those decisions may be crucial. In the last situation, agreeing to more parenting time for the other parent in favor of sole custody for you may be key.

Finally, while these are legal concepts that the legal community is to some extent enamored with and blinded by, there are other possibilities and they only take some imagination, and depending on the legal professionals involved, you may be the one that needs to keep this in mind. For example, many people would find it objectionable to grant the other parent sole custody. However, many would be more likely to take the label of joint custody, but with lessened decision making rights for one parent versus the other parent.

Perhaps a joint parenting agreement could specify that the parties must agree on issues of healthcare and religion, specifying the religion of the child, and requiring the primary residential parent to only consult the other parent when making major educational decisions. This would amount to the following: true joint legal custody on the issue of healthcare only; limited joint legal custody on the issue of religion, neither party being able to raise the child in a religious tradition other than that specified without the very difficult process of modifying the agreement; and sole custody on the issue of education, in that the primary residential parent can make all decisions in this regard as long as she or he consults (talks to) the other parent ahead of time.

The point here is not that trickery is the way to achieve your end, but that different things are important to different people. It is the idea that in negotiating an agreement you are always divided up a pie. The pie consists of what the parties see in front of them as being available to divide. The ability to redefine the pie, by finding out what is important to each party may allow you to increase the size of the pie, making its division that much easier.

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