What is the Difference Between Physical and Legal Custody in Illinois?

father-r-10.01.14Child custody is a topic that is often misunderstood. Many people think custody only has to do with agreements about the time spent with a child, when it actually encompasses a much wider range of rights. Custody in general refers to the decision-making power of parents after a divorce. While some states define a difference between physical custody and legal custody, Illinois does not. The joint custody law was revised in 1986 and no longer makes any distinction between physical custody and legal custody. Today, Family Law in Illinois only defines differences between joint custody and sole custody. These custodial agreements will include decision-making rights of parents regarding the important issues of education, religion and medical decisions. Physical access to the child will be outlined in the residential custody and visitation agreements.

Joint Custody in Illinois

A common misperception regarding ?joint custody? is that it means parents will have an equal, ?50-50? split of time with the children. This is not what joint custody means from a legal standpoint. Rather, parents who share joint custody of a child often do not necessarily spend the same amount of time with the child, but they will both have equal rights to participate in the major decisions that will affect the rearing of the child. To name just a few, educational issues, medical decisions, and religious practices of the child will all need to be discussed by both parents. Put simply, joint custody means that both parents are encouraged, and have the right, to jointly parent the child regardless of the visitation schedule.

In addition, there can be some variations in joint custody depending on the circumstances. For instance, one parent may have stronger religious beliefs. As a result, the parents could agree that said parent would have more say about the child?s religious upbringing. The other parent may have a professional medical background, so that parent might be more responsible for making decisions about the child?s medical care. This does not mean, however, that these decisions should not still be discussed and/or negotiated at the time of the divorce.

Sole Custody in Illinois

Sole custody awards full decision-making authority to one parent. This parent will have the sovereign right to make all major choices about medical care, schooling, and religious upbringing of the child without the approval or input of the other parent. The parent with sole custody will provide the primary residence for the child and receive child support, but the non-custodial parent may still be granted visitation rights.

Sole custody is usually awarded when a divorcing couple and/or unmarried parents are unable to work together peacefully. If trying to make decisions jointly creates more problems than it solves, or if there is a potential for violence, then sole custody may be the best solution. Remember, however, that it is usually in the best interest in the child if both parents can find a way to effectively communicate, compromise and cooperate.

**Note: In Illinois, even if a parent is awarded sole custody, that parent does not have the right to move out of state with the child without the other parent’s consent or court approval. The parent wishing to move has to prove to the court that it’s in the best interest of the child to move.?

Residential Custody in Illinois

If joint custody is awarded, the court will usually assign one parent to be the primary residential custodian of the child. The parent chosen as the primary residential custodian will be responsible for making daily, routine decisions for the child and be the one who receives child support payments. The Court applies the statutory guidelines for setting child support regardless of whether the parents share joint custody or one parent is awarded sole custody. Child support amounts to the primary residential parent will be the same amount as paid to a parent having sole custody, BUT residential status does not grant additional decision-making rights to that parent, unless otherwise agreed upon by the parents.

The goal with any custody arrangement?whether joint custody or sole custody?is to ensure that decisions are made in the best interest of the child.

If you have children and are going through a divorce, let the experienced attorneys at Sherer Law Offices guide you through this complicated process.?CONTACT our office for a legal consultation.

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