Custody” Is Gone: New Laws in 2016

There’s a lot of chatter in the Illinois family law bar. If you’re about to divorce or file for parentage, then be prepared for everything you’ve ever heard about custody to change. More

There’s a lot of chatter in the Illinois family law bar. If you’re about to divorce or file for parentage, then be prepared for everything you’ve ever heard about custody to change. More amendments to the Illinois Marriage and Dissolution of Marriage Act are coming on January 1, 2016, and literally “custody” itself is being removed from mention. You read that correctly: Illinois is doing away with “custody” and “visitation.”

Now, courts will no longer award custody or visitation, but rather allocate parental responsibilities and parenting time. Despite the attention-grabbing idea that notions of custody and visitation are being erased, which have been around for decades, it’s possible that the more things change, the more they’ll stay the same. What do we mean?

Under the new framework, parental responsibilities are broken into categories such as education, health, religion, and extra-curricular activities. The Court can allocate the respective responsibilities either jointly or solely to the parent(s). There’s the familiar wording: “joint” or “sole.” What the legislature has done is rename custody as allocation of responsibility, which traditionally has been understood as joint or sole legal responsibility. Joint legal custody meant equal-decision-making on these same types of issues. Soon, the notion of joint legal custody is effectively being broken into pieces that can be assigned separately to either or both parents. The separate issue of setting a physical care schedule (“visitation”) will simply remain separate.

Critics fairly point out that an unintended effect of this new law will be to create multiple areas for parents to fight in court. Now, instead of fighting simply over custody, there can be 4 or more fights over each area of responsibility.

The goal of the bill is to avoid creating feelings of “winners” and “losers” in child custody litigation. This is certainly an important goal: it’s certainly arguable that the traditional legal system which is adversarial, is not suited to family law. Allowing parents to fight just like litigants in other areas of the law is ultimately harmful to the family. It will surely take time to reset our fundamental thinking about “custody” and “winners or losers” in child-related issues, but one thing is for sure: custody litigation IS harmful – to the parents, to the kids, to the busy court system, and to finances. This is one reason mediation became required before being able to litigate custody cases: it’s private, less costly than having two lawyers involved on each side, and is more of what is termed a “collaborative law” approach. Statistically, cases settle in mediation around half the time.

Einstein said, “It is impossible to solve a problem at the same level of consciousness that created it.” For those of us who have practiced law or grown up under the idea of “custody” and “winning custody,” these changes meet (perhaps rightfully, for now) with skepticism and concern. Somehow, though, we must start down a new path that keeps families out of conflict and out of court as much as possible. A reset on the culture of custody would be a welcome success. Time will soon begin to tell if we’re getting there.