While our firm has strong financial expertise, Michael Roe has always had a strong focus on child custody issues, including complex child custody litigation.
In Illinois law, the term “child custody” has been replaced by “allocation of parental responsibilities” and “parenting time” since January 1, 2016, under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The shift in terminology reflects a focus on shared parenting and the best interests of the child, moving away from the older, more adversarial concepts of custody and visitation. Here’s a clear breakdown of the differences:
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Child Custody (Pre-2016 Term):
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Historically, “child custody” referred to both legal custody (the right to make significant decisions about the child’s upbringing, such as education, healthcare, religion, and extracurricular activities) and physical custody (where the child primarily resides).
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It often implied a primary custodial parent with whom the child lived most of the time, while the non-custodial parent might have “visitation” rights.
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The terms “sole custody” and “joint custody” were used to describe whether one or both parents had decision-making authority and physical care responsibilities.
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This framework was seen as less collaborative, sometimes framing one parent as having more control or “winning” custody.
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Allocation of Parental Responsibilities:
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This term, introduced in 2016, encompasses significant decision-making responsibilities (formerly legal custody). It refers to which parent(s) make major decisions about the child’s life in areas like education, healthcare, religion, and extracurricular activities.
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Decision-making can be allocated in several ways:
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Joint allocation: Both parents share decision-making responsibilities, requiring cooperation on major decisions.
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Sole allocation: One parent has authority over all or specific decision-making areas.
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Divided allocation: Each parent is assigned specific decision-making domains (e.g., one handles education, the other healthcare).
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The focus is on who has the authority to make long-term, impactful decisions, not day-to-day choices, which are typically handled by the parent with the child at the time.
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Courts prioritize the child’s best interests, considering factors like the child’s wishes (if mature enough), parental involvement, and the ability of parents to cooperate.
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Parenting Time:
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Parenting time refers to the schedule of when each parent has physical care and responsibility for the child (formerly physical custody or visitation).
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It includes routine, day-to-day caretaking and “non-significant decision-making” (e.g., preparing meals, helping with homework, or managing daily routines) during a parent’s designated time with the child.
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Parenting time schedules can be equal (e.g., alternating weeks) or uneven, with one parent having the majority of time, often called the “primary residential parent.” The other parent may have scheduled parenting time, such as weekends or holidays.
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The court aims to maximize both parents’ involvement unless it’s against the child’s best interests (e.g., due to abuse or neglect).
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Key Differences:
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Terminology and Philosophy:
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“Child custody” is an outdated term that combined legal and physical custody, often implying a winner/loser dynamic. “Allocation of parental responsibilities” and “parenting time” emphasize collaboration, shared roles, and the child’s well-being.
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The new terms aim to reduce conflict by focusing on specific responsibilities and time-sharing rather than control over the child.
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Scope:
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Allocation of parental responsibilities focuses on significant decision-making authority, addressing long-term choices about the child’s upbringing.
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Parenting time focuses on the physical time spent with the child and daily caregiving responsibilities.
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Legal Process:
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Both aspects are determined through a parenting plan, ideally agreed upon by parents and approved by the court. If parents cannot agree, mediation is required (except in cases like domestic violence), and a judge will allocate responsibilities and time based on the child’s best interests.
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Courts no longer use “custody” or “visitation” for parents; “visitation” now applies only to non-parents (e.g., grandparents).
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Flexibility:
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The modern framework allows for tailored arrangements. For example, parents can split decision-making by category or create customized parenting time schedules that suit the child’s needs and parental circumstances.
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The older custody model was less flexible, often defaulting to sole or joint custody without as much nuance.
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