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Joint Custody vs. Sole Custody: What is the Difference?
As a child custody lawyer in Chicago, one of the largest misconceptions we find parents have prior to splitting up or going through a divorce is related to the difference between sole, joint custody, and residential custody. Prior to beginning divorce or child custody proceedings, many litigants mix up the terms “sole custody,” “joint custody” and “residential custody”. It is very important to clearly understand what these different terms mean prior to initiating litigation so that you can obtain the best result for your family.
Legal Custody in Ilinois
Under current Illinois law, joint custody and sole custody each refer to what we call legal custody. In plain English, joint custody and sole custody each refer to the parents’ decision-making ability.
Sole Custody
In a sole custody case, one parent usually has the final decision-making authority for major decisions for the minor children, such as educational, religious and medical decisions. However, in a sole custody situation, often times the parents will still have to make a good faith effort to try and consult with the other parent before the sole custodian makes a decision. After all, the non-custodial parent is still a parent of the child.
Joint Custody
In a joint custody situation, the parents try to make all major decisions together, including but not limited to major educational, religious, and medical decisions. If the parties are not able to agree, they are oftentimes required to use a mediator to try and resolve the issue before being able to file a motion. Joint custody is far more common than sole custody, the reason being that even if two litigants do not care for each other anymore, they both still care about the best interests of their children and typically can agree on what is best for them, even if they need to utilize mediation to come to a decision.
Residential Custody
Residential custody is completely different from joint or sole custody and it refers to which party the minor children primarily reside with. Sometimes, parties choose not to designate a residential parent, or to only designate a residential parent for the purposes of choosing a school for the children to attend. They alternate weeks with the children or split weeks with the children. The parties usually need to live very close to one another in order for this to work with minimal disruption to the minor children.
Helpful Resource: Guide to Child Custody in Illinois
Best Interest of the Child
Custody is determined under current Illinois law based upon what is in the best interests of the children. The courts will look at many different factors when determining joint versus sole custody, including, but not limited to: the physical and mental health of all parties involved, the wishes of the parents, the wishes of the children (sometimes, but not always), and, who the primary caretaker has been for the children.
Custody is determined under current Illinois law based upon what is in the best interests of the children. The courts will look at many different factors when determining joint versus sole custody, including, but not limited to:
- the physical and mental health of all parties involved;
- the wishes of the parents;
- the wishes of the children (sometimes and only if they’re old enough); and,
- who the primary caretaker has been for the children.
A court will consider granting one parent sole decision-making in the 4 major areas (education, extracurricular activities, medical care, and religion) based on these best interest factors if the other parent is unfit. In order to get sole decision-making, you’ll have to provide evidence that the other parent is unable to provide proper care and support for your children. This can include proof of neglect, abuse, or other things that are harmful to your children’s well-being.
An alternative middle ground between sole and joint decision-making is when one parent has final decision. The parents are required to discuss the options or issues, but one parent has the final say. Another arrangement is to split the 4 categories between the parents.
For example, Mom can have final say on education and extracurricular activities, and Dad can have final say on medical care and religious activities.
Getting sole physical custody requires the same kind of evidence. Without proof that your children’s other parent is unfit, a judge would likely rule that the other parent should have some time with the children. There are many kinds of parenting schedules.
For example, exchanging every other weekend and holidays, or just switching during the summers, or exchanging every Monday night. If you don’t want your children to have any overnights with their other parent, you’ll have to come to a written agreement with that parent or prove, with evidence that the other parent is unfit.
How Does Sole Custody Affect Child Support?
Decision-making has no bearing on child support. However, physical custody and parenting time have an impact on how much child support the custodial (majority time) parent receives. Child support in Illinois is calculated based on the incomes of both parents and the allocation of overnights each parent has. Generally, the fewer overnights a non-custodial parent has, the more they would pay in child support.
Whether you believe it is in the best interests of your children to have sole custody or joint custody, the attorneys at Anderson Boback & Marshall are experienced in both contested and uncontested custody issues. We can consult with our clients to try and determine what would be an optimal and cost-effective custody situation for them and their children. If you are experiencing a child custody issue and you are seeking legal counsel, please feel free to set up a consultation with one of our skilled attorneys today.
