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Is Residential Custody the Same as Sole Custody?

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Illinois recently made significant changes to its child custody laws. In particular, Illinois changed the nomenclature around how the law and courts describe and divide child custody rights. Continue reading for a discussion of how child custody currently operates in Illinois. Call a compassionate Chicago child custody and divorce attorney for help with an Illinois child custody matter or other family law dispute.

Defining Child Custody Terminology in Illinois

In 2016, Illinois overhauled its divorce and family law system. As part of that overhaul, the Illinois legislature changed the terms that apply to child custody disputes, whether they are part of a divorce or a separate matter. Rather than “child custody,” Illinois law and courts now refer generally to the “Allocation of Parental Responsibilities.” Those rights and responsibilities are categorized as either “parenting time” rights or “decision-making” rights.

In other states, child custody is split between “legal” and “residential” custody. Legal custody, now called decision-making in Illinois, concerns the right of the parent to make important decisions concerning the child’s upbringing. Those decisions may pertain to the child’s religion, education, medical matters, extracurricular activities, and others. One or both parents will have the legal right and responsibility to make these decisions on behalf of the child. If only one parent has rights to certain types of decisions, then the other parent must gain their consent before making a decision with regard to that right (for example, before enrolling the child in a religious school).

Parenting time, formerly called “visitation” in Illinois and elsewhere known as “residential” or “physical” custody, refers to physical control over and access to the child. Parenting time covers the right to determine where the child lives as well as to visit and spend time with the child otherwise. Basically, “parenting time” amounts to the schedule of each parent’s time with the children.

Even if You Have “Residential” Custody, You Might Not Have “Sole” Custody

Unlike other states, Illinois courts do not automatically presume that joint custody is in the child’s best interests. Instead, the court will conduct a thorough analysis to determine who gets which rights, assuming the parents have not agreed to either share or apportion the given rights and responsibilities.

In practice, attorneys and clients still talk about “custody,” “joint custody,” and “sole custody,” because those concepts are ingrained in our minds through years of practice and culture. A “joint custody” arrangement in Illinois would essentially mean that parenting time is roughly evenly split between the parents and that decision-making rights/responsibilities are shared between the two. If one parent wants “sole” residential custody, what they want is for the child to live with them and for the other parent to be restricted to scheduled visits. If the parent wants “sole” legal custody, what they want is the sole responsibility for all decision-making concerning the child.

If the parents cannot agree on a division of decision-making responsibilities and parenting time, the court will set a parenting time schedule and apportion decision-making roles based on the best interests of the child. Just because one parent takes the lion’s share of parenting time, however (the parent who elsewhere and previously in Illinois might be referred to as the “residential,” “primary,” or “custodial” parent), does not mean they have sole decision-making rights. Those rights can and will be apportioned separately. Moreover, Illinois is still very much an “every other weekend” type of state, so it is likely the court will order some sharing of parenting time rather than restricting the non-primary parent to visitation.

Make sure you are very clear with your Illinois family law attorney about your wishes for your child custody arrangement and your reasons for believing you should be entitled to greater rights than your child’s other parent if you are seeking greater custody rights.


If you are dealing with divorce, child custody, allocation of parental responsibilities, spousal support, or any other family law issue in Illinois, contact the knowledgeable and effective Carol Stream family law attorneys at Johnson, Westra, Broecker, Whittaker & Newitt for a consultation on your case at 630-665-9600.

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