IS JOINT CUSTODY ALL IT'S CRACKED UP TO BE?

           Approximately 20 years ago, on January 1, 1986, the Illinois Legislature enacted a new law allowing divorcing parents to share joint custody of their children after a divorce.  The purpose of this law was to allow both parents to attempt to maintain a close relationship with their children, despite the fact that one parent was moving out of the house.  The joint custody law was intended to work for parents engaged in an amicable divorce.  (Is there such a thing?). 

            The joint custody law stated that parents could sign a joint parenting agreement specifying each parent's powers, rights and responsibilities for the personal care of their children.  This joint parenting agreement would state that both parents are to participate in decision making regarding their minor children's educational upbringing, choice of doctors and dentists, religious training, and of course, enrollment in extracurricular social activities and school activities. 

            The joint custody law ordered parents to "be flexible in arriving at resolutions" for the benefit of the minor children.  Joint custody was only supposed to be ordered by the court in cases in which the parents exhibited "an ability to cooperate with one another" concerning decisions regarding the minor children. 

            In many respects, the joint custody law has created as many problems as it sought to cure.  Parents who figured to lose a custody battle in court have, on so many occasions, held the parent who in all likelihood, should become the primary custodial parent hostage by refusing to sign off on a divorce agreement unless the primary custodial parent agreed to "joint custody."  Since taking a divorce case all the way to trial is a financial hardship (and in some cases, a financial impossibility), parents who should become primary custodial parents of their children have often times capitulated to their spouses unyielding demand of joint custody. 

            Once joint custody has been established, the primary custodial parent (often times the mother) is then ordered under the terms of the joint parenting agreement to consult with her ex-spouse for most every important decision in her minor child's life.  For example, if the children come home from school one day and tell mom they want to play soccer, or baseball, or basketball, or ballet, or join the band, or participate in a play, or join a social club, a typical joint parenting agreement would require the mother to discuss this decision with her ex-spouse before the okay can be given.  The problem is that there are sometimes hundreds of decisions to be made each year for each one of your minor children, and if your ex-spouse seeks "revenge" for the divorce, or simply wishes to make his ex-spouse's life miserable, he can demand mediation and court appearances each time another decision for the minor child or children needs to be made.  This is just one example of how the joint custody law from January 1, 1986 can be used as "a sword" rather than as a way of allowing the non-custodial parent to participate in the daily upbringing of his minor children. 

            One final point of clarification is that each parent's parenting time with the minor children is unrelated to the joint custody law.  For example, a father demanding joint custody of his minor children with his soon to be ex-spouse may only arrange for visitation on two weekends per month; however, a father willing to relinquish sole custody of his minor children to the mother can still negotiate and achieve a visitation schedule allowing him to see the minor children during the weekdays, and on all weekends.  The issues of parenting time and joint custody are unrelated. 

            In summary, the use of this joint custody law continues, so before you agree to joint custody with your divorcing spouse, be certain to have a detailed discussion with your attorney on the pros and cons of entering into a joint parenting arrangement.