Shared Custody in Illinois

April 20, 2011

In today's modern families it is common for fathers and mothers to both play active roles in the parenting of their children. When these marriages come to an end, one of the most troublesome problems is the issue of where the children will live.

Illinois law provides two options to resolve custody disputes, namely Sole or Joint Custody. When applied traditionally either option unsatisfactorily results in the children residing primarily with one parent while the other parent exercises visitation and pays child support.

The response to this problem in Illinois family law, however, is a growing trend for judges to approve a hybrid form of Joint Custody called Shared Custody, where parents share equally, 50/50, the physical possession of the children.

Common Shared Custody Schedule: A common Shared Custody parenting schedule would be Monday and Tuesday with one parent, Wednesday and Thursday with the other parent and the weekends alternating between the two households. Holidays are, likewise, alternated throughout the year between the parents and vacation time is provided for each household as well.

Shared Custody Decision Making: As in every Joint Custody arrangement, the parents in a Shared Custody case jointly resolve issues of education, religion, health care and extra-curricular activities.

Shared Custody Child Support: In Shared Custody cases, traditional child support is modified to allow for each parent to be solely responsible for the financial needs of the children when in their possession. The higher-income earning parent, however, pays a reduced amount of support to the lower-income earning parent, which lessens the disparity in income between the two households.

When Shared Custody May be a Good Option: Even today most custody cases are resolved in traditional fashion with a Sole or Joint Custody Order where the children primarily reside with one parent. Shared Custody is the exception and not the rule. Not all parents are able to contribute or participate to the extent required in a Joint Custody case due to the hostility between the parents, conflicting work schedules, etc.

The basic prerequisites for a Shared Custody resolution are as follows:

Location of Households: Generally the parents must reside in the same school district. This makes it unnecessary to designate a primary residence, which is traditionally used to determine where the children go to school.

Availability to Share Parenting: Parents can have Joint Custody regardless of their work schedules and availability for visitation. However, parents can enter a Shared Custody Order only if they are physically able to care for the children half of the time. For this reason traditional day time work hours are usually required for the parents. If a parent must leave the household very early there must be another adult member of the household available so that the children do not also have to wake very early and to provide breakfast and morning guidance and assistance to the children. If a parent must work very late there must be an acceptable after school care plan in place.

Age of the Children: Infants are not considered good candidates for a Shared Parenting Order. Generally, children of grade-school age and older can do well in a proper Shared Custody situation.

Parental Cooperation: Bitter custody battles will not result in a Shared Custody Order. Although judges are authorized to enter a Joint Custody Order at the conclusion of a custody trial, even though the parties have not agreed to Joint Custody and each parent is vying for Sole Custody, no judge will enter a Shared Custody Order unless the parties agree and jointly ask the court to do so.

While it is still a rare case that is concluded with the entry of a Shared Custody Order, such cases are becoming more common in Illinois law, and, in the proper circumstances, the court will enter such an order. As in any custody order the emphasis for the court is not on the parents but on the best interests of the children. To this end, in most cases the Shared Custody arrangement is installed and in place well before the final order is entered. This allows the final Agreed Shared Custody Joint Parenting Order to be presented along with the testimony of the parents that the agreement has successfully been in practice, that the children are functioning well and that the parties agree that the Shared Custody arrangement should continue on a permanent basis. With these safeguards in place it would be most unusual for a judge to not defer to the parents and their sworn representations as to how their custody case should conclude.

Article provided by The Divorce and Family Law Offices of Wakenight and Associates PC
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