Attorney on Child Custody: ‘Our law has not kept up with society’s changes.’

This is a pretty good, no-nonsense article about custody law in Illinois (Chicago Now, 4/29/11).  It’s obviously written by divorce lawyers with plenty of experience with clients in custody battles and how custody law and practices play out in that state. The authors’ first goal is to dispel some apparently widespread misconceptions about the concept of “joint custody.”  That term would seem to imply a certain equality, but of course it doesn’t.  And that’s the source of the public’s misconceptions.

Joint custody in Illinois does not automatically or necessarily mean that each parent gets 50-50 time with the children. While 50-50 time sharing can and often does occur, it does not define “joint custody”.

What does define joint custody is the extent to which each parent is entitled to share in decision-making concerning the children’s upbringing. Joint custody is about sharing decision making; it is not about how much time is spent with the children.

Time of course is what non-custodial parents, 84% of whom are fathers, want with children.  Yes, they want an equal say in parental decision-making, but the article notes that the concept of joint custody doesn’t provide for that either.

The decision making power that is given to the non-residential parent under Illinois’ joint custody law does not pertain to ordinary, day-to-day child rearing. It applies only to three areas of the children’s upbringing. The non-residential parent is given an equal say with the residential parent when it comes to the children’s medical care, schooling, and religious upbringing.

As to time spent with children, the joint custody system differs little if at all from the previous system of custody and visitation.

Prior to joint custody being enacted in Illinois, one parent would be awarded custody of the children, and the other parent would be awarded visitation. With joint custody, one parent is designated as the residential parent, and the other parent is awarded visitation. There is very little actual difference.

And then the article takes on the topic that’s been a burr under my saddle for the last 12 years or so – the failure of family law to keep up with or even acknowledge certain pertinent realities.  One of those is social science.  As I’ve said ad infinitum, social science says children need two parents while family law is hell-bent on separating fathers from children. Another is the desires of everyday people.  In Canada, poll after poll shows people supporting equally-shared parenting and in the U.S. a recent study shows what its lead author called a “strong preference” for equal parenting post-divorce. The article linked-to shows a third reality ignored by courts – the change in male/female roles in the family and society.  As all but family courts seem to know, women do much more paid work than they did back in 1977 when Illinois’ custody statute was enacted.  Men do much more childcare and women are more than ever the chief wage-earner in the family.  All of that should militate in favor of greater fathers’ rights in custody matters, but it doesn’t.

The world has changed since joint custody became the law in Illinois in 1977. Unfortunately, our law has not kept up with society’s changes.

Today, more women are in the workplace, and more men are working from home. More women are working 9 to five jobs, and more men are able to greet the children when the school bus brings them home…

This new parental involvement, the shift of occupational roles of the parents, and the phenomenal increase of parenting duties that men have assumed since 1977, have led to a situation where men are spending considerably more time with the children than they did during joint custody’s formative years. Society has changed, and men’s roles have changed. Unfortunately, Illinois’ child support laws have not kept up with these changes.

All of that has a common denominator; there’s a single thing that connects the refusal of courts to honor social science, the will of the people and the objective changes in sex roles.  That thing is the denigration of dads.  As different as those things are, they all accomplish a single goal – the continuing marginalization of fathers in the lives of children. What may be called gilding the lily, is this:

Today, according to the strict letter of the law, non-residential parents who are with the children 40% or 50% of the time, are still required to pay the same child support percentage that visiting parents (with considerably less parenting time) were required to pay in 1984.

Obviously, that tends to accomplish the same thing.  Requiring “non-residential” dads to pay the same child support if they have the kids 50% of the time as if they have them 20% of the time can only discourage equal parenting.  After all, a father only has a certain amount of money and his childrearing costs go up the more time the child stays with him.  If his child support doesn’t go down proportionally, he’s stuck. Interestingly, the article says that some judges have begun to ignore the requirements of the child support laws in cases of greater parenting time for the “non-residential” parent.

Some judges are “taking the law in their own hands” and entering child support orders that reflect the additional time that some non-residential parents are spending with the children. In a sense, these judges are applying the justice that the Illinois law does not provide.

I wish there were more who did. This article is just about Illinois custody law, but it’s a fair description of what we see across the country.  Yes, laws and practices of specific states differ, but overall, it’s a pretty clear snapshot of where we stand in child custody today.

Leave a Reply

Your email address will not be published. Required fields are marked *