What "joint custody" actually means in Illinois

The word does a lot of work it shouldn’t

Most parents who walk into our office to talk about a divorce or a parentage matter use the word “custody.” Many of them have a clear picture in their heads of what it means — usually some combination of “who the children live with” and “who makes decisions about them.” When they talk about wanting “joint custody,” they mean some version of “we will share.”

Illinois law has not used the word “custody” in its statute for more than a decade. The state’s Marriage and Dissolution of Marriage Act was reorganized in 2016 to replace “custody” with two distinct concepts that are decided separately. The old language still floats around — in older court orders, in everyday speech, on legal websites that have not been updated, and in the conversations parents have with each other. But the law itself, and the structure of the documents your case will eventually produce, is built on the new vocabulary. Understanding what those two concepts are — and what “joint custody” does and does not mean today — is one of the most useful things a parent in this situation can do early.

The two concepts: parenting time and parental responsibilities

The first concept is parenting time. Parenting time is the schedule — the actual hours and days each parent has the children. A parenting-time schedule can take many forms: a 50/50 alternating-week arrangement, a 60/40 split with a midweek dinner, a school-year schedule that flips for summer, or a weekend-and-vacation arrangement when one parent has the children most school nights. The court’s job is to enter a parenting-time order that fits the children’s lives — their school schedule, their extracurriculars, the parents’ work schedules, the geography of the two homes — and serves their best interests.

The second concept is parental responsibilities. This is the decision-making piece, and the statute breaks it into four “significant decision” categories: education, healthcare, religion, and extracurricular activities. The court allocates these four categories — sometimes jointly to both parents, sometimes solely to one parent, and sometimes split (one parent has education, the other has healthcare, both have religion, etc.). The allocation depends on the parents’ history of decision-making, on whether they can communicate effectively about decisions, and on what serves the children.

Together, these two concepts replaced the old “custody” framework. There is no longer a “custodial” or “non-custodial” parent in Illinois law. There is a parenting-time schedule, and there is an allocation of parental responsibilities, and they are decided independently of each other.

What “joint custody” usually means in practice

When a parent today says they want “joint custody,” they almost always mean some combination of the two new concepts. They might mean:

• A meaningful parenting-time schedule — perhaps 50/50, perhaps something close to it. This is the everyday-life part: where the kids sleep most nights of the year.
• Joint allocation of significant decisions — both parents weigh in on schools, doctors, religion, activities. This is the structural part: who has authority when something major comes up.
• Some version of cooperation or co-parenting — the soft-skill part that the court cannot order but parents often hope for.

The first two are decided by the court (or stipulated to by the parties) and become part of the formal Allocation Judgment. The third is a function of the parents’ relationship after divorce and is, ultimately, on them.

How parenting time is decided

The statutory standard is the best interests of the child. Section 602.7 of the Marriage and Dissolution Act lists seventeen factors a court considers in setting parenting time. Some of the most often-discussed include:

• The wishes of each parent and, where appropriate, of the child.
• The child’s adjustment to home, school, and community.
• The mental and physical health of all individuals involved.
• The willingness and ability of each parent to facilitate a relationship between the child and the other parent.
• The level of conflict between the parents (and whether and how each parent has tried to reduce it).
• The physical violence or threat of physical violence in the household.
• The distance between the parents’ residences and the practical implications.

The factors are not weighted equally; courts evaluate them in the totality of the case. Two cases that look similar on paper can come out differently because the underlying facts are different. A “50/50” schedule is often achievable when both parents have meaningful work flexibility, live within a reasonable distance of each other and of the children’s school, communicate at least minimally well, and have a track record of involvement in the children’s lives. Where any of those is missing, the schedule may end up looking different.

How parental responsibilities are decided

The same best-interests framework applies, but the focus shifts to decision-making. Courts ask: which parent has historically made decisions in this category? When decisions have been made jointly, has the cooperation worked? Where there has been disagreement, has it been productive or destructive? Is one parent better positioned — by experience, by availability, by relationship with the children — to lead in a particular category?

A common outcome is joint allocation across all four significant-decision categories, particularly when the parents have a history of working together effectively. Another common outcome is a split: education and extracurriculars to one parent, healthcare and religion to the other. Less common, but appropriate in some cases, is sole allocation to one parent in all four categories — typically when the other parent has been minimally involved or where there are concerns about judgment.

What is not joint custody

A few things parents sometimes assume are part of “joint custody” but are not:

• It is not a 50/50 schedule by definition. Joint allocation of significant decisions is compatible with a parenting-time schedule that gives one parent substantially more day-to-day time. The two questions are decided separately.
• It is not a guarantee that you will agree on everything. A joint-allocation order obligates both parents to consult, but it does not eliminate disagreements. The Allocation Judgment usually specifies a tiebreaker mechanism — sometimes mediation, sometimes a parenting coordinator, sometimes the court.
• It is not a static order. Both parenting time and the allocation of responsibilities can be modified later if circumstances change substantially. The standard for modification is high, but the order is not frozen.

Where the parenting plan comes in

Both the parenting-time schedule and the allocation of responsibilities are documented in a single document called the Allocation Judgment, which the court enters as part of the divorce or parentage case. Before that, each parent files a parenting plan — their proposed allocation. The plans are due early in the case and frequently get revised through negotiation, mediation, and (in contested cases) trial.

Parenting plans tend to be detailed: they specify the regular schedule, the holiday schedule, the summer schedule, vacation rules, telephone and electronic communication rules, transportation arrangements, the right of first refusal (if either parent cannot exercise their parenting time, must they offer it to the other parent before getting a babysitter?), travel notification rules, and how disputes will be resolved. The detail is not bureaucratic; it is what makes the plan workable.

What this means for parents starting the process

Three practical takeaways.

First, separate the two questions in your own head. When you think about what you want, think about parenting time and decision-making separately. The schedule and the allocation are different conversations, and treating them as one bundle (“I want joint custody”) often makes negotiation harder than it needs to be.

Second, build the case for what you want with facts, not labels. A parent asking for substantial parenting time is more credible when they can describe their actual involvement in the children’s lives — the doctor’s appointments they took to, the homework they helped with, the activities they coached. The same is true for parents asking for sole or joint allocation of decision-making.

Third, know that “joint” requires a working partnership. Joint allocation of significant decisions assumes two parents who can communicate effectively about big questions, even after a divorce. Where that is realistic, joint allocation is often the right answer. Where it is not — where the conflict is too high or one parent has been disengaged — a different allocation may serve the children better, even if it is not what either parent imagined as “joint custody.”

The old word does not match the new framework, and the new framework is better. It separates two questions that were often answered with one label, it requires courts and parties to think carefully about each, and it produces orders that more accurately reflect how families actually work after a divorce.

This article is for general informational purposes only and does not constitute legal advice.