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(i) Custody: Sole and Joint

Sole and Joint. Historically, children were considered the chattels of their fathers. In divorces prior to 1920, their custody was typically awarded to him. The emergence of Freud's views on the importance of a mother in a child's early development gained wide acceptance in the 1930's and, for the next fifty years or so, switched the courts' inclination to award custody to the mother, with the father given visitation rights. This gradually came to mean "every other weekend and one night a week".

Under the influence of the women's movement, custody rights began to shift again in the last ten years: women in the workplace demanded that their husbands take a more equal role in child care. Many men responded positively by becoming more and more involved with their children.

Today, the current trend is toward equality between mother and father in child custody decisions. A mother is no longer automatically assumed to be the parent with whom the child should live, and a father has a greater chance of winning custody.

There are two types of litigation with regard to child custody: Original Custody Determinations and Change of Custody.

In Original Custody Determinations, one parent does not have to prove the other unfit in order to gain custody. They must demonstrate that their retention of custody is in the child's best interests. Some of the facts which the court considers in determining what is in the best interests of the child include the sincerity of each parent's desire to have custody; the wishes of the child; the interaction and relationship between the child and a parent; siblings; the child's adjustment to their home, school and community; the mental and physical health of the individuals involved; past physical violence on the part of each parent; the on-going occurrence of domestic abuse; and the willingness and ability of each parent to encourage a close and continuing relationship between the other parent and the child.

In Change of Custody Determinations, the court reviews a change in circumstances only after the original custody judgment has been issued. A change in custody is reviewed by the court only if there is a substantial change in circumstances regarding the child's health and welfare. Also, the party seeking the change must prove, through clear and convincing evidence, that the child's best interests are being considered. Stability is sought by not allowing any changes in the custody arrangements for two years after the original determination of custody except in extreme cases of abuse which constitute a serious endangerment to the child.

Having custody of a minor child can mean Sole Custody, which is the custodial parent's right to make major decisions affecting the child's life (such as medical care, education and religion), and normally includes physical custody, which is the actual possession and control of the child subject to reasonable visitation by the non-custodial parent.

Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the child. Parents may make visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation. The best practice is to have a detailed schedule that states specifically when the child will be with each parent. Grandparents may also be allowed some form of visitation.

Visitation is modifiable if a court determines that changing circumstances warrant a modification.

In 1985, the Illinois General Assembly adopted a statute which provided for Joint Custody. The law requires that a Joint Parenting Agreement spells out "each parent's powers, rights and responsibilities for their personal care of the child and for parity in major decisions such as education, health care and religious training."

The decision for joint custody requires a stipulation that both parents are fit and proper persons to exercise custody over the minor child(ren) but generally provides that one parent will be in possession of the children a majority of the time. The parent with whom the child spends the majority of their time is referred to as the primary physical residential parent and the other is referred to as the non-physical residential parent. The physical residential parent is generally entitled to receive child support for the care and support of the children from the non-physical residential parent.

In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order if it determines that Joint Custody would be in the best interests of the child, taking into account the ability of the parents to cooperate effectively and consistently with each other in matters that directly affect the joint parenting of the child; the residential circumstances of each parent; and all other factors relevant to the child's best interest.

The 1985 law was designed to avoid custody battles and to provide stability to divorced families. When custody is disputed, the divorcing couple must attend several sessions with a court-appointed mediator who sees the parents and children, attempts to reconcile the parents' wishes, and then makes a recommendation to the judge. Psychological examinations of the parties, home studies and the input of attorneys appointed by the court for the minor children may also be considered by the court in making awards of custody to one party or the other when these issues cannot be amicably decided.

It is important to note that not all custody battles are sincerely motivated. Unfortunately, the issue of custody is frequently used by one spouse to put pressure on the other and to induce their acceptance of a financial settlement less favorable to them or to delay a divorce. In these cases, the input of your attorney is crucial to help you maintain a legitimate position and to reach a decision that is financially fair and, of course, in the best interests of your children.

In 2016 the court will no longer use the terms sole and joint custody. The court will now allocate parental responsibilities between parents. Responsibilities include decisions pertaining to religion, education, health and extra-curricular activities your child may be involved in.