Getting a divorce is not easy, especially when children are involved, and it is important to understand the decisions you and your spouse will need to make regarding your children. Prior to 2016, Illinois still used the terms physical custody, legal custody, and visitation when dealing with divorces that involved children. After substantial reforms to the Illinois Marriage and Dissolution of Marriage Act in 2016, there are now two major components that you must address if you have children and are seeking a divorce: parental responsibilities and parenting time. These changes were made in recognition of the way parenting actually happens in families. Rather than having one parent as the sole child-rearer, the law encourages parents to share parenting time and responsibilities. 

Legal Definitions of Parenting Time and Parental Responsibilities

According to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5), there are specific definitions for both parenting time and parental responsibilities:

Parenting time refers to the time each parent spends with the child, during which they are responsible for performing caretaking functions, as well as making non-significant decisions pertaining to the child. Caretaking functions may include:

Getting divorced is an emotionally trying time for parents and their children, but being the divorced parents of a toddler brings unique challenges. While older children may feel guilty over the divorce, toddlers are at a developmental stage when they are too young to understand what a divorce is. However, they do know that their world has been disrupted because their parents are no longer together.

Because toddlers do not have the communication skills to explain their feelings, they are more likely to have behavioral reactions, including:

• Tantrums
• Sleep trouble
• Increased separation anxiety
• Behavioral regression, such as thumb sucking

While these behaviors can lead to developmental setbacks, research has shown toddlers of divorced parents can still develop normally if their parents properly communicate with them. 

Children often suffer when their parents separate or divorce, especially if they find themselves in the middle of a heated custody battle; or, even worse, if they are caught in a second battle after custody has already been “settled.”

A court initially decides child custody based on the child’s best interests. While that court order may be modified, the petitioner must prove that either the child’s or the custodial parent’s circumstances have changed in a way that justifies uprooting the child. (A re-evaluation of the child’s best interests alone is not enough to justify modification.) This is not always easy to prove. In fact, it is easier to win a custody battle in the first place than it is to convince a judge to grant a custody transfer, because Illinois law is biased in favor of the initial custody determination. In other words, the law prefers stability for the child instead of continuous upheaval.

A court might grant the petitioner’s request to modify child custody if one of the following circumstances is true:

Divorce by itself is complicated enough. If there are children involved, a potentially messy process becomes even messier. One of the most important issues to be resolved is child custody. Will the parents share custody? Will one parent have sole custody? Will the non-custodial parent have visitation rights? While the parents may express their wishes regarding the child custody arrangement, ultimately the court will award custody based on what is in the best interests of the child.

Deciding Between Sole Custody and Joint Custody 

When one parent has sole custody, this parent has the legal right to make all major decisions regarding the child. Those decisions include where to send the child to school and what type of medical treatment to seek. The other parent may be granted visitation rights. This arrangement might suit a family that was already accustomed to “single parenting” (for example, if one parent stayed at home with the children while the other parent worked). But just because one parent was the family’s breadwinner does not mean this parent cannot – or should not – seek sole custody. Again, the decision comes down to what is in the best interest of the child.