Kane and DuPage County Divorce: Joint Custody

There are a number of states that have adopted presumptive joint custody, or in other words, these states presume in a divorce that absent other evidence, the court should find that joint legal and shared physical custody is in the child's best interest. Illinois is not one of these states, unfortunately. Recently, the Illinois Legislature's appointed Family Law Committee has been exploring a number of changes to Illinois' Marriage and Dissolution of Marriage Act. Is presumptive joint physical custody coming to Illinois? Is Illinois emerging from the Dark Ages of custody law? It does not look like it.

The word from colleagues is that the adoption of presumptive joint custody in Illinois is not going to occur. The reasons for this failure are not due to the efforts of many good lawyers to seek progressive changes to Illinois law. There are some lawyers, however, for whom positive change for families and children is not a good thing. Unfortunately, progressive changes do not look like they are on the horizon in Illinois.

I have consistently advocated for joint legal and physical custody. Of course, there are exceptions; for example, I just completed a trial where my client was properly awarded sole legal and primary physical custody. Yet, as a general proposition, good, competent, loving parents, both Mother and Father, should share the parenting of their children after divorce. The psychological studies reveal that presumptive joint custody is in the best interest of the children and the parents.

"By presuming joint custody as early as possible in the court process, parties are impelled to attend to the child's needs, thereby encouraging mature behavior and discouraging divisive, childish conflict. Shared parenting with mutual responsibility -- joint custody -- is in the best interest of the child, parents, society, and the court system. Those courts can assist the parents in settling their own disagreements by providing a context for negotiation and helping to mold specific child-centered joint custody agreements." Potash, Marlin S., Ph.D. : Psychological Support for a Rebuttable Presumption of Joint Custody : Probate Law Journal, Vol. 4, 17, 1982

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Kane and DuPage County Joint Custody

I have written previously about joint custody, and what this term means in the context of Illinois custody litigation. If one thing is clear, it is certain that many lawyers, parents, and even some judges do not have a clear view of what Illinois Joint Custody entails.

Put simply, joint custody awards require the parents to make major decisions about the children together. In the event of a dispute, a means for solving the dispute is implemented. And, the joint custody order should call for periodic review, so that as the children age, their needs can be met with flexible mutually agreed changes, such as parenting schedule changes.

One aspect of joint custody that I feel is not often considered is the requirement that joint custody be ordered when a risk of alienation of the non-custodial parent is a risk. Some judges feel, following In re Marriage of Marcello, that they cannot order joint custody if the parents do not get along, and there is a breakdown of communication. What I have observed in many cases is that the primary caregiver parent, who many times may be the temporary custodial parent, simply becomes difficult, argumentative, or at worst, alienating, with the hope that the non-custodial parent is cut out of the decision making for the children.

In my opinion, an award of joint custody can be a reward for two parents who cooperate well with each other. At the same time, a requirement of joint custody may be one tool the court can implement to require a custodial parent to involve, and share information with, the non-custodial (usually Dad) parent.

Using the father as the noncustodial example in this case, ensuring that Dad has joint custody, and requiring Mom to communicate and decision make with him, meets the test that Seitzinger and other Illinois cases have established regarding joint custody: it's for the best interests of the kids, and not reserved only for parents that get along. Indeed, the parent that wishes to push Dad away should be required by the judgment to joint parent.

Kids need both loving parents in their lives; mandated joint custody is one way to accomplish this.

View the original article here

Kane and DuPage County Joint Custody

I have written previously about joint custody, and what this term means in the context of Illinois custody litigation. If one thing is clear, it is certain that many lawyers, parents, and even some judges do not have a clear view of what Illinois Joint Custody entails.

Put simply, joint custody awards require the parents to make major decisions about the children together. In the event of a dispute, a means for solving the dispute is implemented. And, the joint custody order should call for periodic review, so that as the children age, their needs can be met with flexible mutually agreed changes, such as parenting schedule changes.

One aspect of joint custody that I feel is not often considered is the requirement that joint custody be ordered when a risk of alienation of the non-custodial parent is a risk. Some judges feel, following In re Marriage of Marcello, that they cannot order joint custody if the parents do not get along, and there is a breakdown of communication. What I have observed in many cases is that the primary caregiver parent, who many times may be the temporary custodial parent, simply becomes difficult, argumentative, or at worst, alienating, with the hope that the non-custodial parent is cut out of the decision making for the children.

In my opinion, an award of joint custody can be a reward for two parents who cooperate well with each other. At the same time, a requirement of joint custody may be one tool the court can implement to require a custodial parent to involve, and share information with, the non-custodial (usually Dad) parent.

Using the father as the noncustodial example in this case, ensuring that Dad has joint custody, and requiring Mom to communicate and decision make with him, meets the test that Seitzinger and other Illinois cases have established regarding joint custody: it's for the best interests of the kids, and not reserved only for parents that get along. Indeed, the parent that wishes to push Dad away should be required by the judgment to joint parent.

Kids need both loving parents in their lives; mandated joint custody is one way to accomplish this.

View the original article here