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Significant Decision-Making Responsibilities is the New Custody

The new section 602.5 of the Illinois Marriage and Dissolution of Marriage Act states that “significant decision-making responsibilities” must be allocated to one or both parents.  This was referred to as “joint custody” or “sole custody” in the previous version of the IMDMA. The new section 602.5 is similar to the old one in that the court is to consider the child’s best interests when allocating decision-making responsibilities.  This statute section then lists fifteen specific best interest factors as well as a catchall of “any other factor that the court expressly finds to be relevant.”  Note that the court is not REQUIRED to allocate any decision-making responsibilities to a parent.  In other words, a parent is not guaranteed any decision-making responsibilities; he or she could walk away from a divorce with no significant decision-making responsibilities whatsoever.  

Section 602.5 sets forth four significant decision-making issues for parents and courts to address: 

1) Education - This includes choice of school and tutors.

2) Health – This includes medical, dental, psychological needs and treatments.  However, the statute does not specifically refer to optical or orthodontic needs and treatments.  It may be a wise decision for a parent to ask that these be set forth in a written agreement or judge’s decision.

3) Religion – The court is to consider any express or implied agreement between the parents and the parents’ past conduct pertaining to the children attending church or church activities.  Note, though, the statute states that the court shall not allocate any aspect of child’s religious upbringing if it determines that there is no express or implied agreement or no previous course of conduct.  So, if a parent decides during divorce proceedings that their child should be raised in a particular religion, but the parent had previously never expressed that intent, and the child never attended church or church activities, at trial, a judge may decide that the parent is NOT allocated any decision-making responsibility for the child’s religious upbringing.

4) Extracurricular Activities – This issue is often a point of contention with parents following divorce.  One parent may argue that the other enrolls the child in activities during his or her parenting time, that the child is enrolled in too many activities, and/or that the activities are too expensive.  Stating specifically who has the authority to make these decisions may diminish future issues between the parents.  The parents should also request that any agreement or judge’s decision state a limit on the number of extracurricular activities a child may participate in per school year or per season, as well as a limit on the out of pocket cost for each parent.

The four above-mentioned decision-responsibilities are not finite.  The statute says that the responsibilities include those four, but are not limited to just those four.  Another decision-making responsibility to be allocated to one or both parents may be childcare.  This could include the decision of a childcare provider whether it be an in-home nanny, a daycare facility, a family member, etc. and what kind of research and investigation is done in order to make that choice.  Other decision-making responsibilities may be fact-specific depending on a child’s needs.  For example, if a child requires the services of an occupational therapist or physical therapist for developmental delays, one parent may be designated as the decision-maker for choosing the providers and creating a therapy schedule.  If a child has extreme allergies or dietary restrictions, one parent may be designated as the decision-maker for setting the child’s diet, choosing a nutritionist or dietician, and/or purchasing food.  If you as a parent feel that some issue in your child’s life is significant, and you want the power to make decisions about that issue, or share in making those decisions with your ex-spouse, make sure to discuss that with your lawyer.  

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