Divorce and Parenting

If you are a parent contemplating a divorce, or are in the midst of one, you may be wondering about custody. You probably have heard about joint custody, sole custody, and split custody, but you may not really know what these terms mean or how they may apply to you. This article is an attempt to briefly explain the different forms of custody, which I prefer to refer to as "parenting".

"Parenting time", what is sometimes referred to as "visitation", is distinct from "parenting". "Parenting time" refers to the amount of time each parent gets to spend with the children. "Parenting" refers to decision making.

The "residential parent" is the parent with whom the child(ren) reside. The designation is necessary for such legal purposes as to which school district the child attends. When parents elect "joint parenting" they must still designate a "residential" parent. The "sole custodial parent" is always designated the residential parent.

Nonetheless, whether the children are in the sole custody of one parent or in the joint custody of both parents does not impact the amount of time either parent may have for parenting time.

The intent of the law in the State of Illinois is to support the children's "best interests" by providing for the maximum amount of time possible with both parents, regardless who is the primary residential parent."

Failing to understand this principle is often the underlying reason behind custody disputes. Another misunderstanding that leads to custody disputes is the erroneous belief that the parent who is the residential parent gets to make all the decisions, including whether or not to move out of state ("removal").

Whether parents enter into sole or joint agreements, moving out of state is only allowed by agreement of the parents, or by court order. If the parents disagree about removal, the parent who wants to leave the state with the children has to petition the court for permission to do so. Obtaining judicial leave to remove is a difficult task that requires particularly strong evidence to show that it is in the "best interests" of the child to leave the state with one parent. The law presumes that it is better for the child to be near both parents, unless there are extremely convincing reasons why this should not be so.

Joint custody requires the cooperation of both parents for major decision-making issues. It is the preferred path for parents to take when they divorce, as it encourages each parent to participate more fully in their child's growth and development, When parents agree to joint custody (I prefer to call it "joint parenting"), they agree that one will be the primary residential parent, the parent whose address will be the child's address. Joint decision-making refers only to the major decisions that effect the child's life and upbringing, not the day-to-day decisions that must be made by the parent with whom the child is with when they occur.

The time that each parent spends with the children is called "parenting time" (sometimes referred to as "visitation"). Parenting time is usually worked out between the parents to take into consideration the ages of the children, the schedules of the children, and the work schedules of the parents. It can be as much or as little as the parents agree upon. It is usually a dynamic schedule, because as the children get older their needs, and their schedules, change. The parents also share major decision-making, consulting with each other about such matters as religious training, extra-curricular activities and lessons, summer programs and camps, major school trips, if and when your child gets his or her own car.

Daily decisions are made by the parent who is with the child when those decisions come up. While parents do not have to personally get along well to be joint decision makers, they must be able to get along well enough to discuss those issues or the process won't work.

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Before you give up on joint parenting, you might want to think about whether or not you will always be fighting or whether the present situation has more to do with your divorce and what is occurring now than what will be in the future. When the heat of the moment cools down, parents often realize how important it is for children to have both of their parents in their lives. It is important for the kids and important for the parents. Who will love your children more, a parent or a day care provider, a parent or a friend filling in?

When parents divorce they sometimes transfer their anger, hurt, or disappointment at the other spouse onto their beliefs as to what kind of a parent the spouse is, was, or will be. Because you chose that person to be the father or mother of your child and now believe you made a big mistake in choosing that person, you may think you are protecting your child or children from the actions of the other parent, or from making the same mistakes you believe you made, by limiting that parent's access to the children you believe you are protecting.

Too often during a marital crisis parents lose sight of what their children are thinking and feeling. Too often parents, lost or caught up in the intense emotions of a marital break up, have neither the insight nor the sensitivity to their children's feelings. Too often the parents only want to enlist the children on their side, to let the child know how betrayed the parent feels, how angry, how justified he or she is in their anger. When you feel these feelings, think these thoughts, believe that you are just helping your children understand what is going on as the world is crashing in on you. . . . Stop. Look. Listen.

You may think that you are just protecting your child or your children from being disappointed by the other parent or by the divorce by giving them your story and helping them understand why this is happening, but really, you are not. When you bad mouth the other parent you are actually committing a form of child abuse, as you are telling a child, even a very young child, that half of that child, the half that comes from the other parent, is no good.

The message can come through even without words. Child custody fight? Denied visitation? Limited parenting time? Encouraging your child/children to skip visitation or parenting time because he/she/they just "don't feel like it? Openly or covertly telling friends, family, children, your attorney that the other spouse just does not know how to care for the kids? That you are not sure they will know what to do in an emergency? That only you have the temperament to deal with them, to help them with their homework, to bring order or fun or control to your children's lives?

Stop. Look. Listen. What are you thinking? What are you doing? Was there not a time that you loved the other parent? That you chose to have a child together? Once you have made that decision and the child comes into the world, you are forever connected to each other. Unless the other parent is a truly evil person, a danger to you or your children, has violence or substance abuse problems, or emotional or mental problems that make it impossible to try to find a way to keep that parent in your children's lives without endangering them, give yourself and your children the chance to keep the family intact even if the marriage breaks up.

Our children look to the adults in their family to guide them. They depend on us for making the right decisions, the safe decisions. We have their trust. They believe in us. Even when they don't like the decisions we make for them, the structure we impose on their lives, the directions in which we hopefully point them, in their hearts they are glad that their parents care enough for them to look out for them, and make the tough decisions for them.

What can you do to stop the anger, distrust, lack of cooperation, disengagement, and general anger from permeating your divorce and forever damaging your children? You can reconsider litigation, if you are in or contemplating a child custody battle, to think about what it is that you will be accomplishing. Children deserve two parents. Just because the parents no longer care about each other should not mean that the children should lose a parent in the process.

Before you decide to engage in a custody battle you can seek out alternative remedies. Consider mediation on the child related issues of your divorce or for all of the issues in the divorce. Or take the bold step toward making decisions that affect your family within the family by using the Collaborative Divorce process. By consulting with and ultimately retaining counsel who are committed to helping clients reach reasonable settlements that take into account the long-term effects on the family of the divorce, you give yourself and your children the chances that all of you deserve when your marriage is ending.

Long after the divorce is concluded and the spouses have gone their separate ways, family events will occur that bring the divorced of them together. Family celebrations, children's activities, even chance meetings at the movies or the mall. Don't you want to attend a graduation, a child's' participation in a concert, or your child's wedding without throwing daggers at each other, without causing your children awkwardness, discomfort, or sadness during their happy times? Your pain will fade in time. Bad feelings dissipate. Your children's pain and bad feelings may also fade, provided you do the right thing and think not only of yourselves, but of the others you love in your family.

One of the attorneys I know says he likes to ask his clients if they believe that at the conclusion of their cases they believe they can pass the mirror test: will the client be able to look himself or herself in the mirror and honestly say "I did my best to do the right thing for myself and my family." For the children's sakes, we hope so.

SANDRA M. ROSENBLOOM, J.D. Family Lawyer, Collaborative Law Attorney, Mediator, Divorce Consultant

Attorney Sandra Rosenbloom assists clients in all matrimonial law matters--such as, collaborative and traditional divorce proceedings, custody, and post-decree modifications--in Cook County and Lake County, Illinois (IL)--including Chicago, Skokie, Northbrook, Northfield, Deerfield, Lake Forest, Highland Park, Glencoe, Wilmette, Winnetka, Evanston, Lake Bluff, Buffalo Grove, Vernon Hills, Gurnee, and Lincolnshire.