What Do You Do When Custody is Gone: The New Illinois Divorce Law

What Do You Do When Custody is Gone: The New Illinois Divorce Law

For generations, deciding who got custody of the kids has been standard practice for all divorcing parents. Admittedly, the concept of custody has grown into something that is more than a little bit confusing: parents struggle to understand the differences between joint custody, sole custody, shared custody, split custody, legal custody and residential custody. In Illinois at least, that struggle is now over.

In its infinite wisdom, the Illinois legislature recently decided to end all the confusion (and all of the battles) surrounding custody and just abolish custody altogether. Sadly, it may have created more problems than it solved.

Exactly What IS Custody?

Before you can understand the new Illinois law, you have to know a little bit about how custody worked in the past. ( … and how it still works in most of the rest of the country.)

Even though there are now lots of different kinds of custody, fundamentally all custody can be broken down into just two things: who makes decisions about your kids (legal custody), and where your kids live (residential custody). Everything else is just some variation of those two concepts.

In every family, at least one parent had to have decision-making responsibility for the kids (legal custody). The parents could have the right to make decisions for their kids together (joint custody) or one parent could have the right to make decisions for the kids alone (sole custody).

Similarly, the kids had to live somewhere. That is, at least one parent typically had to have “residential custody” of the children.  Even if the parents had joint legal custody of their children, the parent with whom the children lived most of the time was named the “residential custodian.” of the children.

Over time, some custody hybrids evolved.  If parents shared a relatively equal amount of time with their kids, and they each had joint decision making authority, they were said to have “shared custody.” If one parent had custody of one child, while the other parent had custody of the other child, those parents had “split custody.” (Courts hate split custody. It usually only happens in rare and special circumstances.)

“Visitation” (which is known under the new law as “parenting time”) is totally separate and distinct from custody.  Even under the old law, both parents had a right to spend time with their kids regardless of which parent had custody. (That is, unless the court had specifically restricted one parent’s time with the kids because that parent was abusive or dangerous to the children.)

If Custody is Gone, What Happens With the Kids?

As of January 1, 2016, Illinois has replaced the concept of “custody” with the term “parental responsibility.” Parental responsibilities include the responsibility for making decisions involving their children’s education, health, religion and extra-curricular activities.  Parenting time is now viewed, not only as a parental right but also as a parental responsibility.

Just as before, parents can share decision-making responsibility for their children, or one parent can have the sole decision-making responsibility for the children and the other parent can have no say in those decisions. Unlike under the old law, however, the parents can divide their decision-making responsibility.  That is to say that one parent can have the sole right to make religious decisions for the children while the other parent has the sole right to make educational decisions for the children.

No matter who has “decision-making” responsibility for the children, both parents have the right to make routine, day-to-day decisions regarding the children when the children are in their care.  Both parents also have the right to make emergency decisions affecting the child’s health and safety when that child is with the parent.

What Does This Mean to You?

For parents who get along reasonably well (at least for the sake of the children) the change in the statutory language from “custody” and “visitation” to “parental responsibilities” and “parenting time” will make little difference. These parents will work out which responsibilities they will share, and which responsibilities each of them will have sole authority over, without too much difficulty.

For parents who don’t get along, the new law will likely be both a blessing and a curse.  It will be a blessing because now each parent can be given authority over a separate area of decision-making: one parent can make health decisions for the children while the other decides which extra-curricular activities they can participate in. 

The new law will also eliminate parental fights over the issue of “who gets custody.”  Since custody is gone, parents can no longer fight over it. What’s more, since each parent can theoretically get decision-making authority over their children in some area, parents no longer have to fight a win/lose battle, where one of them gets sole custody and the other gets nothing.

On the down side, instead of fighting over one thing (custody) contentious parents now have four different areas of decision-making regarding their children to fight over.  Parents who move out of state after their divorce may also face an additional problem: most other states still use the word “custody.”  Courts in those states may have trouble figuring out which parent has “custody” when they look at a divorce judgment that doesn’t even mention the word “custody.” 

The Bottom Line

The changes to Illinois family law are new.  Only time will tell whether these changes are helpful or harmful.  It will also take time to see how the courts interpret this law, and whether they uphold all of the new changes or not.  Finally, it remains to be seen whether other states follow Illinois’ lead and eliminate the concept of custody from their statutes, too. (Colorado actually abolished the concept of “custody” before Illinois. So, this may be a new trend.) 

If you are a parent, and you are getting divorced in Illinois, what you need to know is that everything in this area of the law is so new, that you absolutely need to get legal guidance in your divorce.  The changes regarding custody are only a few of the new changes to Illinois divorce law.  There are many, many more. 

If you don’t understand the new Illinois divorce laws, you are likely to make mistakes in your divorce that will end up costing you more time and more money than you would have spent if you consulted with a lawyer in the first place. You also may end up unintentionally making life much harder for your kids.


Karen Covy is an Illinois Divorce Adviser, Attorney, Mediator, Collaborative Divorce Practitioner and Divorce Coach. She is also the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally.

To get more advice and information from Karen, check out her website at https://karencovy.com/.