What is Child Custody?

Child custody is a hotly contested issue in a divorce case because people feel that if they don’t have custody, that they’re not going to have involvement in the child’s life. Custody is a misunderstood element of a divorce case, and it is often sent to mediation so that a mediator can explain to the parties exactly what’s involved in custody.

The most common form of custody is joint custody. Joint custody is custody for decision-making, so I’m talking about the decision-making that one would make over health, education, and religion of the child. I am not talking about joint custody in terms of both parties having physical care custody and control of the child, but rather just an input, a say in the child’s life in the decision-making involving important events. In some cases, joint custody cannot be obtained because the parties do not have the ability to cooperate in effective joint parenting. In those cases, the court is going to award custody to one party or the other.

The person who has custody has the decision-making, and the person who does not have custody has visitation rights. The custodial party is also entitled to child support, based on the state guidelines here in Illinois under the Illinois Marriage and Dissolution of Marriage Act. For one child, child support is 20 percent of the payer’s net. For two children, it’s 28 percent of the payer’s net, and the percentages go up from there.

The party who does not have custody is also entitled to visitation. Visitation can
be extensive or it could be very limited. The court simply wants to see adequate visitation and a reasonable schedule put in writing, so that it’s subject to enforcement. The standard visitation schedule that we commonly see is alternating holidays, alternating weekends, and possibly a day during the week.

However, in many cases, if the parties are in agreement on more liberal visitation, then we can see visitation schedules which range from several days in a row to every weekend to extensive time in the summer, extensive time over the winter break, and any other visitation schedule that the parties agree to, which the court can approve.

Custody does not have to be a difficult issue. Custody can be done by agreement. Custody can be reasonable and the parties can agree to cooperate in the raising of the child. However, what we often see is one party’s desire to prevent the other from having access to the child. This alienation of the child, or alienation of the parent in the child’s eyes, is a very difficult and common problem, unfortunately, in divorce cases.

In Cook County, Illinois, mediation is ordered so that the parties can get a better understanding of what exactly custody is and how it’s going to affect the parties and the child. I have found that after mediation, my client and the opposite client come out with a better understanding of custody, to the point where we can now negotiate some terms. It is not until mediation, in many cases, where the parties actually are aware of exactly what custody entails, so I applaud the mediators in Cook County for coming up with a system to educate the parties so that they can work towards a resolution of the case regarding custody.