When going through a divorce and making major decisions, most people don't understand the difference between joint custody and sole custody in family court. You need to know what you want before heading into the courtroom. Sometimes, however, parents who are not married may say they want full custody when they really mean sole management conservatorships and supervised visitation. This article will treat “full legal custody" as synonymous with " parent sole management conservatorships and supervision."
Sole Custody vs. Joint Custody
Before you start thinking about which types of custody arrangements would be best for you and your child, you must first understand the differences between legal and physical custody in family court. Legal custody means having the legal right to make important life choices for the children, including where they live, who their caregivers are, and whether they attend school. Physical care means actually providing these things for them. For example, if one parent has sole legal care but doesn't provide adequate housing for the children, then he/she would not be considered an appropriate caregiver. If both parents have joint legal care but don't share equal parenting responsibilities, then neither parent would be considered an appropriate caregiver.
A sole custody mother usually holds the legal right to make all decisions regarding her children, but she shares these decisions with the non-custodial father. A non-custodial father usually holds the legal right but shares his decisions with the custodial mother. Joint physical custody means that both parents share equal amounts of parenting responsibility for their children.
The term "joint physical custody" is often interchangeable with the phrase "shared parenting." When the court grants shared parenting, legal and physical custody is granted to both parties. Shared parenting means that each party shares equal responsibility for making major legal and physical decisions regarding the children. However, it's important to know the difference between these two concepts because it's possible for a couple to agree to shared parenting without agreeing to shared physical care.
Custodial parenting means having legal control of the children in family court. It usually involves the custodial (or primary) mother who has physical possession of the children. Visiting parenting means having contact with the children. It usually includes the non-custodial (or secondary) father who has legal control of the children but no physical possession of them. If the two parties cannot agree on visiting parenting arrangements, they must go to court and ask the judge to decide which arrangement serves their children’s best interest.
When a Parent Should Seek Sole Custody
If you want to get sole legal custody of your children, you need to show that it would be in their best interests for you to get sole legal custody. You may be able to convince the judge that it’ll benefit your child if you get sole custody by showing that it’ll help him or her achieve certain goals.
1. Your child’s specific needs,
2. If there is any evidence of abuse by either party,
3. If there has been any neglect by either of them and if they've had trouble communicating before, then it might be worth trying again.
4. If there was any relevant history of physical abuse between you and the other parent, include it here.
You need to collect as many documents and statements as you can about your children’s needs and their not having been fulfilled by the other parent.
How to Obtain Full Custody
Child custody rights or parental rights consist of legal and physical custodianship. Legal custodianship is the ability to make important life decisions for the children, and physical custodianship is where the children reside primarily. Receipt of full custodial rights would mean having sole legal custodianship and primary physical custodianship. If awarded legal custodial rights, the person who has sole legal custodial rights would not be required to share important decisions with the other party.
When deciding whether one parent has primary physical custody, the court considers both parents' situations and their ability to care for the child. It always considers the child's best interest. If one person has primary physical custody, he/she would be responsible for taking care of the kids regularly and the other person would get visitation rights.
Can a Sole Custody Arrangement Be Changed?
Sole custody and parental rights can be modified when necessary, but they must be decided upon by a judge. Parental responsibility refers to who has the authority to make decisions for the child. Parenting time refers to where the child spends their days.
It is important for kids to have stability in their lives, so the courts don't change custody and move them from one place to another unless it is in the kid's best interest. They look at the custody and visitation factors laid out in Illinois' laws to determine if it is in the kid’s best interest.
If you want to change sole custody, you‘ll first have to file the proper paperwork and then take part in the court process.
- Obtain the current custody (parenting responsibilities) orders.
- Complete your child support modification forms.
- File your forms with the appropriate government agency.
- Let them know about your petition and the impending hearing by contacting their lawyer.
- Visit the hearings you have
- Make sure you prepare an allocation of parental responsibility order outlining the changes in custody and placement.
After filing the proper paperwork, the court may only modify custody orders if there are specific circumstances.
Reasons to Change Custody:
1. Serious Endangerment
If the court finds that there has been a significant change in circumstances since the last order, they may consider modifying parental rights even if it has not been two years. They will also consider whether the current environment is going to significantly impair the children’s emotional development, which includes their ability to form healthy relationships.
An example of this endangerment would be if a child were to move in with their parent's significant other or if the parent were to marry someone who had been convicted of sexual assault or substance abuse.
2. A Change in Circumstances
If you want to modify custody (parental rights) after two years, then you need to prove that there has been a substantial (and important) difference between the way things were before and now. For example, if you had joint legal custody before but not now, then you'd probably qualify for a custody adjustment.
- A distinct drop in the child's student’s performance at school or in their extracurricular activities
- A child who develops social problems due to his/her parent's behavior.
- A parent starts a job at a different time than usual.
- A child gets seriously ill or has a health problem.
- The child is at high risk of developing psychological issues because of his/her environment.
- The parents move more than 25 miles away from their children.
If you're wondering if the court will consider your request for a modification of custody as a "substantial change in circumstances," talk to an experienced family lawyer. We've handled many of these cases before, so we can tell you whether the court will accept your petition.
3. Exceptions to a Change in Circumstances
If there has been a significant change in one parent’s life (such as death), then the court may order a change in parental rights or placement without requiring a showing of a change in circumstance.
- If the change reflects a current situation that’s been in place for at least six months.
- If the change is a minor adjustment to an existing parenting schedule or custody arrangement.
- If there is new evidence that could have been presented at the time of the previous hearing that would prove the previous decision was not in the child's best interest, then the court must take into account that new evidence when making its decision.
- If both parties agree to the change.
These are Some Scenarios in Which You Have a Better Chance of Getting Sole Custody:
If you're concerned about your children's safety with an unfit parent, then asking for sole legal and physical care may be the best option for them.
History of Abuse/Domestic Abuse:: If one partner assaults or abuses the other partner or any children, this poses a serious threat to the safety of the children involved.
Negligence: If a parent has already been negligent towards their children, they may be likely to repeat this negligence in the future. Negligence is the failure to take reasonable steps to ensure that a person's health, safety, welfare, or rights are not infringed upon by others.
Alcohol Abuse: When parents use illegal substance abuse, they present a danger to their children. Their altered mental states prevent them from caring for their children properly.
Mental Health/Medical Care: A person should not be allowed to harm themselves if they exhibit irrational and unpredictable behaviors. For example, a person should not be allowed access to weapons if they show signs of mental illness.
Abandonment: Sometimes parents can't be bothered to look after their children. If a parent hasn't been interested in looking after their children for some time, they might not show up when they're needed most. You might consider giving them sole legal guardianship so they can't come back later to claim parental responsibility.
Incarceration: If a mother is incarcerated, she cannot provide a home or raise her children. In this situation, you may want to consider seeking sole legal and physical custodial rights, and the other mother can have visitation rights after her release from incarceration. Do not feel obligated to take your children to see a mother who has been incarcerated if you feel it would be harmful to them emotionally.
Is There a Preference of Full Custody for Mothers?
Courts don't usually award custody of children to one party over another simply because they're male or female. Instead, courts look at this major decision as to which arrangement would be most beneficial to the children involved. If it's in the best interest of a particular family to live together, then that's what happens.
Get Help from an Experienced Child Custody Lawyer Today
If you are looking for a family law attorney to help in a parental rights case, contact an attorney at Tommalieh Law Firm. Call (708) 232-0017 to have a free case review for child custody laws and child custody concerns from a family law lawyer.