Recent amendments to the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) abolished all references to the term “custody”. However, pursuant to Section 610(f)(5) of the statute, the Court is required to designate the parent “who is allocated the majority of parenting time.”
When drafting parenting plans, parents frequently question why this designation is necessary. Undoubtedly, the requirement seems to contradict the overriding goal of making parents feel like equal co-parents. The dispute over which parent is designated the “sole custodian” has now morphed into the fight over who is “allocated the majority of parenting time.”
The reason such designation is required is because, notwithstanding the changes to Illinois law (i.e. the removal of the term “custody”), some federal and state statutes still reference “custody” or “custodian.” For example, the federal Parental Kidnapping Prevention Act, 28 U.S.C.A Section 1738A, refers to the “custodian”, rather than the parent allocated the majority of parenting time. As another example, under the Illinois School Code, the parent with the majority of parenting time is considered to have “legal custody.” This is significant because “[t]he residence of a person who has legal custody of a pupil is deemed to be the residence of the pupil.” See 105 ILCS 5/10-20.12b(a)(1).
Thus, designation of “custodian” becomes necessary for the purpose of accommodating other statutes. Unfortunately, the IMDMA does not provide any guidance as to how to determine which parent has “the majority of parenting time.” For instance, should the designation be calculated by hours or days? Many parents have a relatively equal schedule and, as a result, we see new disputes arising over this designation.
As a practical consideration, the parties should consider where the children attend school and the parent who resides in that district should take the designation. If the parties live in the same school district and there is more than one child, some parents may opt to share the allocation. For example, one parent may have the designation for one child and the other parent may have the designation for the other child.
Parents are well-advised to know that, under the statute, “the designation shall not affect the parents’ rights and responsibilities under the parenting plan.” In other words, regardless of the designation, the parents can maintain an equal, co-parent dynamic.