Allocation of Parental Responsibility to One Parent

Many parents in the beginning stages of the divorce process have heard the phrases “joint custody” or “sole custody” but often do not understand the actual legal meaning of the terms. Commonly, people mistakenly believe the parent with the majority of parenting time has “sole custody.” The decision of whether sole or joint “custody” is appropriate is also generally unrelated to parties’ parenting schedules. In Illinois, the term “legal custody” (in contrast to “physical custody”) used to refer to a parent’s ability to make decisions for their minor children in the major areas of religious upbringing, healthcare, education, and extracurricular activities. Effective January 1, 2016, the Illinois legislature has abolished the term “sole custody.” Now, decision making authority is allocated to one or both parents on an issue-by-issue basis.

If decision making authority on any given issue is allocated to one parent, the parent to whom it is awarded is granted the right to make decisions regarding their child without obtaining the agreement of or even consulting with the other parent. Generally speaking, most parents who have maintained some degree of involvement in their children’s lives seek joint “custody,” or joint allocation of parental responsibilities. However, in some cases, sole decision making authority is the only plausible choice. For example, in cases in which one parent is absent, there has been substantial domestic violence, or the level of conflict between the parents is so high that the children would be negatively impacted by a joint allocation arrangement, the courts are likely to award one parent sole responsibility for making major decisions.

As with “residential custody” / parenting time, the decision whether to award joint or sole decision making authority is determined in accordance with the best interest factors of Section 602 of the Illinois Marriage and Dissolution of Marriage Act, which include:

  • The wishes of each parent seeking parenting time;
  • The wishes of the child as to parenting time;
  • The amount of time each parent spent caring for the child in the last 24 months;
  • Any prior agreements, whether formal or evidenced by the parents’ course of conduct;
  • The child’s interaction and interrelationship with the parent(s), siblings, and any other person who may significantly affect the child’s best interest;
  • The child’s adjustment to his home, school and community;
  • The mental and physical health of all individuals involved;
  • The needs of the child;
  • The distance between the parents’ homes, the parents’ daily schedules, the child’s daily schedule, factors relating to the cost and / or difficulty transporting the child from one home to the other, and the ability of the parents to cooperate in the arrangement;
  • Whether it would be appropriate to impose any restrictions on parenting time;
  • Any physical violence of threat of physical violence by the child’s parent, whether directed against the child or another person;
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
  • Any incidents of abuse against the child or another member of the household;
  • Whether either of the parents is a sex offender; and
  • The military status of the parents

The court will also consider the parents’ past involvement in the children’s lives. In cases where a parent had previously shown no interest in the children’s education, religious upbringing, activities, and healthcare, the court might be more likely to award sole responsibility to the parent who had been making those decisions previously. Also, the courts will examine how well the parents communicate and cooperate with one another.

It is a common misconception that if a party has sole responsibility for major decisions that they may relocate the child outside the State of Illinois without permission of the court. Relocation (formerly “removal”) of a child is governed by Section 609.2 of the Illinois Marriage and Dissolution of Marriage Act and is unrelated to the issue of decision making responsibility.

Even in cases in which one parent has sole decision making authority, the “non-custodial” parent is still entitled to access to information, including medical and dental records, childcare information and school reports. However, some orders, particularly those entered under the Illinois Domestic Violence Act, may prohibit access to this type of information if it appears that the parent without such authority will simply use that information to harass or abuse the decision-making parent or the children.

If you are unsure as to what parenting plan is the right decision for your family, or if you have questions about the legal standards or process, you should speak with an attorney at Kollias & Giese, P.C. Having litigated several contested trials, they can provide important information about the requirements of the law, about likely outcomes in court, as well as about parenting plans that have proven successful. Even more importantly, they can evaluate, and, if necessary, present to the court the unique factors present in each case.