Answers to Some Frequently-Asked Questions:

"Joint Custody," "Sole Custody," "Shared Custody" and "Full Custody." What is the difference?

"Custody" refers to making decisions for a child. There are three main types of decisions:

1. Routine decisions (made at the moment, by whomever is with the child)

2. Emergency decisions (made at the moment, by whomever is with the child - must immediately notify the other parent)

3. Major decisions (not often in the child's life - made jointly or by the sole custodian)

"Routine" decision -- What to eat, what to wear, whether to watch TV, go to a movie or read a book. One parent does not have to consult or ask the other parent before making a routine decision -- no matter what form of custody is in place.

"Emergency" decision -- An unexpected or sudden threat to the health or safety of the child. One parent does not have to consult or ask the other parent before making an emergency decision, but that parent is expected to immediately notify the other parent and share all information with him or her.

"Major" decisions include:

1. choosing doctors,

2. deciding on elective (non-emergency) medical procedures,

3. choosing schools and

4. decisions about religious training.

Differences between 'joint custody' and 'sole custody'

Sole custody: One parent has the final word on major decisions, although he or she can consult with the other parent before each decision is made.

Joint custody: Parents usually sign a "joint parenting agreement" that requires that:

Parents follow a "parenting time" schedule

Parents make major decisions together ,

Parents seek mediation before asking the court to resolve any disputes or disagreements,

Sometimes, when a judge feels that the parents have shown the ability in the past to cooperate in making decisions, but they are currently unable to agree on a "joint parenting agreement," the judge can enter a "Joint Parenting Order" even when one of the parents objects.

Although the term "full custody" is often used, sometimes even by judges, there seems to be no clear definition of that term in Illinois law, and the phrases "joint custody" or "sole custody" should be used.

Shared Custody

Not usually done. The term "shared custody" is sometimes used to mean that the child will live 50% of the time with one parent, and 50% of the time with the other parent. Some parents see this 50/50 split of time as a way to avoid conflict, to smooth over differences. The final divorce judgment or custody order may even leave out the term "residential parent," or fail to say where the child actually lives. While this can be done for a very-young child, when the child reaches the age to be enrolled in school, the parents will normally have to decide which of them will be the residential parent, at least if the child attends public school. That is because most public schools limit enrollment to those children who reside inside their attendance boundaries. This is not an issue when the child attends a private school, however.

How does a custody case proceed in Cook County, Illinois?

When the parents do not agree where their children should live or how time with them should be divided between the parents, the children are going to suffer from stress. They should be introduced to a therapist and taken to regular appointments. Hopefully, one of the parents' health insurance will cover much of the costs. Regular appointments with a therapist (at least every two weeks) will help to relieve the child's stress, help to keep both parents on their best behavior around the child, and provide a way to alert authorities (the Illinois Department of Children and Family Services, or DCFS) if the child reports abuse.

Once a custody case is started in Cook County, either as part of a divorce or as a separate case, the judge will soon want to know whether the parties are going to agree where the child should live and how parenting time should be shared. If it appears that no quick agreement is possible, a judge will usually order the parties to participate in "mediation" and order them to attend a 4-hour seminar entitled, "Focus on Children."

For Cook County cases, mediation is usually provided as a free service through the Marriage and Family Counseling Service. Usually, there are four dates involved:

• Mediation intake date (but this is sometimes waived)

• First mediation session

• Second mediation session

• Mediation status date

If a mediation intake is held, the two parties will appear in court, listen to an explanation by the judge of the importance of mediation, and then briefly meet with the assigned mediator to schedule two mediation sessions.

At the first and second mediation sessions, the parties will meet with the mediator, without their attorneys, usually at 69 West Washington, 10th Floor, in downtown Chicago. The mediator will attempt to find a way for the parties to reach some kind of agreement on where the children should live and how time with them should be shared by the parents. Depending on the age of the children, sometimes a mediator will want to meet with them at the second mediation session.

Everything said during the mediation is 'off the record,' and cannot be used against either party in court. This policy promotes an open discussion and free exchange of ideas, and it recognizes that attorneys are not present to advise the parents. For that matter, even if an agreement is reached in a mediation session, it is not binding on either parent. However, if a clearly-worded written agreement emerges from a mediation session, it might be difficult for a parent to later argue that there was a misunderstanding.

At the mediation status date, the judge will review the mediator's written report. If the report indicates no agreement, or if the judge feels that the children need better protection, the judge may appoint an attorney for the children. There are two usual roles for such an attorney:

• Guardian ad Litem (seeks what is in the children's 'best interest')

• Child Representative (blends 'best interest' with what children want)

Usually, only licensed attorneys are appointed to these roles. Basically, a Guardian ad Litem is concerned mainly with what is in the best interests of the children and a Child Representative is a blending of the two roles - looking out for the children's best interests while strongly considering what they want. There are other important differences in the three roles, including the differing duties of confidentiality and the rights of parents to cross-examine these people at trial.

At the time that a Guardian ad Litem or Child Representative is appointed, the judge will often decide who should pay the fees - usually by an initial deposit of anywhere from $1,500 to $5,000, and then by a per-hour fee of anywhere from $200 to $400 per hour. In some cases, when both parties live in Cook County, the Office of Public Guardian can be appointed. Their hourly fee is much less than a private attorney.

604(b) custody evaluation

If the work of the G.A.L., Attorney for the Child or Child Representative does not resolve the parents' dispute, the Court may appoint (at the parents' expense) a psychologist, psychiatrist, social worker or other professional to conduct a "604(b) evaluation." These can cost $5,000, $10,000 or more in some cases, and the professional produces a written report to the court after interviewing and testing the children, the parents and other involved people over a 3- or 4-month period.

604.5 evaluator

If either parent is very unhappy with the 604(b) evaluator's report, the parent can ask for (and pay for) his or her own custody expert to doa report, known as a '604.5 evaluator.' The cost could be many thousands of dollars, but it can help the unhappy parent cross-examine the 604(b) evaluator and attack his or her report if the case goes on to trial, where a judge is asked to determine custody.

How are child-support payments determined?

Illinois law says that, "The Court shall determine the minimum amount of support by using the following guidelines:

Number of Children Percent of Supporting Party's Net Income

1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%.

The law also says that, “The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors: (a) the financial resources and needs of the child; (b) the financial resources and needs of the custodial parent; (c) the standard of living the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child, and his educational needs; and (e) the financial resources and needs of the non-custodial parent.

If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.”

Illinois law gives a definition of "Net income" as “the total of all income from all sources,minus the following deductions:

• Federal income tax (properly calculated withholding or estimated payments);

• State income tax (properly calculated withholding or estimated payments);

• Social Security (FICA payments);

• Mandatory retirement contributions required by law or as a condition of employment;

• Union dues;

• Dependent and individual health/hospitalization insurance premiums; Prior obligations of support or maintenance actually paid pursuant to a court order;

• Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.”Note: When it speaks of "prior obligations of support," the lawis referring to payments made under court orders in other cases, such as in previous divorce case. Although it seems to leave the door open for a range of deductions from net income, the “expenditures” deduction mentioned above is rarely used in actual practice.