Joint Versus Sole Custody: What’s the Difference?
One of the largest misconceptions litigants have prior to divorce is related to the difference between sole, joint and residential custody. Prior to beginning divorce or 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 optimal result for your family.
Under current Illinois law, joint 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. In a sole custody case, one parent usually has 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. 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 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.
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.
Whether you believe it is in the best interests of your children to have sole custody or joint custody, the attorneys at Anderson & Boback are experienced in both contested and uncontested custody issues. We are able to 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 having a custody issue and are seeking counsel, please feel free to set up a consultation with one of our attorneys