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The Fallacy of Joint Custody

The public seems to have been misled, either by myth or otherwise, regarding the concept of joint custody. It does not mean 50/50 time with the children. It means 50-50 decision making ability for certain child rearing items.

“Joint Custody” is just a term and not much more. It is highly sought after but is not what people think it is. It is generally nothing more than a name given to the type of visitation the non-custodial parent gets. It provides the non-custodial parent with a title which is intended to make that person feel better about his or her role with the children but it does not, in and of itself, have to give that parent any more rights with the children than in cases where the other parent has sole custody.

  • Prior to 1977, the mother generally got custody of the children and the father got visitation.
  • Joint custody was enacted in Illinois in 1977.
  • Nowadays, if joint custody is awarded, the mother generally gets possession of the children and the father gets visitation.

It is just words. The father does not get any additional visitation by virtue of being named as a joint custodial parent.

A joint custodial parent does, however, receive three rights that are not available in a sole custody arrangement. Those are as follows: an even say (with the custodial parent) as to the choice of schooling, religious upbringing and health treatment of the children. The joint custodial parent does get a 50/50 vote with the custodial parent regarding these three items. However, these three items can be negotiated into a Marital Settlement Agreement even where the other spouse receives full custody. If the parties agree, the non-custodial parent may be awarded those three rights even if he or she is not a joint custodial parent.

When joint custody first got started in Illinois, it was generally believed to be a situation where the parents would each be with the children 50% of the time. That belief did not last long in our legal community. Starting in the early 1980’s the psychiatric community (in custody and visitation cases) recommended to the Courts and to divorce lawyers that children typically did not nurture well in a 50/50 time sharing arrangement. They said that children do the best when one parent serves as the primary caretaker or residential parent and the other parent is the visiting parent.

… children may not nurture well in a 50/50 time sharing agreement
They recommended that children be able to live and work out of one location with one set of rules and report to one parent regarding adherence to that parent’s rules. The belief was that living out of two homes on a 50-50 basis could be confusing or detrimental to the children stability.

However, that was over 20 years ago and the world has changed quite a bit since then. Women are now much more entrenched in the workplace and men have become much more involved in the children’s day-to-day upbringing. Parental roles seemed to have narrowed to some extent. Many dads now work out of the home and many moms are now the parent with the long hours or the long commute. Today’s dads are choosing to live much closer to the children than in the past. Twenty years ago, dads (and moms) didn’t coach their children’s sports activities like they do today and children didn’t seem to have the same need to be driven “everywhere” as they do today. People’s daily lives weren’t as hectic back then. Today, it seems that women’s and children’s lives have become as busy as dad’s was twenty years ago when it was (typically) the father who had the long hours and the schedule that prevented spending more time with the children.

As our lives have changed, so has the trend of our legal system (and of the care-giving community) when it comes to parenting time. Depending on the facts and circumstances of each family, we now see many 50-50 and 55-45 (or thereabouts) shared living arrangements. However it is not the mere title of “Joint Custody” in and of itself that is giving fathers more time with the children. Many attribute the changes in parental roles to the Women’s Movement which is now over 30 years old.


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Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 60 years of combined trial experience in the Illinois divorce courts of Cook, DuPage, and Will counties.


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