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