Understanding Sole And Joint Custody

At the beginning of a divorce or paternity case, parents often have misconceptions or unrealistic expectations about child custody. Specifically, they may not have a proper understanding of sole and joint custody, or understand the difference between residential and legal custody. It is critical that you understand these concepts and how custody determinations are made so that you do not engage in fruitless litigation or make mistakes that would undermine your parental rights.

At The Law Offices of Jeffery M. Leving, Ltd., you will work with attorneys who are deeply knowledgeable about custody law and who will walk you through each step of these complicated and emotional proceedings. In fact, founding attorney Jeffery Leving co-authored the drafting of the Illinois joint custody statute. He is a nationally recognized authority on child custody and related matters of family law such as fathers' rights, with decades of experience litigating and negotiating the terms of custody in complex cases throughout the U.S.

"You would think that most dads would ask for joint custody, but this often isn't the case. They suffer from the common misconception that it's difficult, if not impossible, for men to get joint custody if their spouse is resisting this arrangement."
— Jeffery Leving, in How to Be a Good Divorced Dad

Residential Custody Versus Legal Custody

There are two components to child custody under Illinois law. In simplified terms, you can think of residential custody as "where" the child is raised and legal custody as "how" the child is raised.

  • Residential custody (sometimes called "physical custody") means that the child will primarily live with that parent, except during scheduled visits at the other parent's house. Residential custody is usually what is meant by "custodial" or "noncustodial" parents. The parent with residential custody typically receives child support from the noncustodial parent.
  • Legal custody refers to the parental authority to make decisions on the child's behalf, namely decisions regarding education and extracurricular activities, health care, religious upbringing and general welfare. When legal custody is shared, parents must communicate and come to consensus on important decisions.

Sole Custody, Joint Custody And Visitation

Sole custody (sometimes called "full custody") means that the court vests all the powers in one parent. With proper representation, courts readily award sole custody upon verifiable evidence of child abuse, domestic violence, drug or alcohol abuse, mental illness, criminal activity or other behavior of one parent that endangers the child's safety or well-being.

The family courts of Illinois favor joint custody. Joint legal custody means that both parents have an equal say in the child's upbringing and decision-making, even if the child lives primarily with one parent. Joint residential custody means that the child spends time — but not necessarily equal time — with both parents. The traditional custody and visitation model (every other weekend with Dad, plus one overnight a week) is still common, but no longer the presumption. Many fathers are awarded primary residential custody or split parenting time approximately evenly. We will advocate for what is best for your child and realistic for your circumstances.

While the old "tender years doctrine" that young children need to be with their mothers has been stricken from Illinois law, there remains a residual bias in favor of moms in contested custody litigation. However, this is only a generalization and every case is fact-specific. Fathers seeking custody should not back down — and mothers seeking custody should take nothing for granted. You should always hire an experienced family law lawyer for any facet of child custody.

How Is Custody Determined?

The court's primary concern, indeed its statutory mandate, is what is in the best interests of the child. To reach that determination, Illinois courts must consider the following factors:

  • The wishes of each of the parents
  • The wishes of the child (with extra weight to an older child's preference)
  • The child's interactions with each parent and others in that household
  • The child's adjustment at home, in school and in the community
  • The health of each parent (physical and mental)
  • Physical violence or threat of violence experienced or witnessed by the child
  • Abuse of the child (physical, verbal, emotional)
  • Sex offender status of either parent
  • The propensity of each parent to foster and encourage a healthy relationship between the child and the co-parent
  • Whether one of the parents is in active military service

The court may appoint a guardian ad litem to advocate for the child's interests and also can order a custody evaluation which involves clinical observations and interviews by a licensed psychologist or other qualified mental health provider.

Trust The Professionals Of The Jeffery M. Leving Firm

From our extensive experience in custody litigation, and our familiarity with the family courts in Cook County, we know how to position clients for the most favorable outcome. We will help you explore out-of-court solutions to custody matters while preparing for the possibility of litigation. We handle all custody matters, including initial determination in divorce or paternity cases, modification of custody orders, enforcement matters and relocation hearings, and appeals of unjust custody rulings.

Call our Chicago child custody attorneys at 312-702-0862 and contact us online to schedule a confidential and strategic consultation.