What Does “Sole Custody” Really Mean?

It is a story that has been dominating the tabloids for weeks: Angelina Jolie is trying to get sole custody¹ of the children she and her soon-to-be ex, Brad Pitt have together. While the public does not know the details of the Jolie Pitt case, I can say that obtaining sole custody is not easy, and that there are few instances when it is warranted.

So what does sole custody really mean? First of all, the term sole custody is now known as “allocation of sole parental responsibilities regarding decision-making.” What that means is, even if one parent is granted “sole custody,” parenting time is decided and allocated separately of parental responsibilities.

Parental responsibilities are broken out into categories reflecting significant decision-making responsibilities with respect to a child. Decisions about education, health, religion, and extra-curricular activities can be decided by both parents or in the case of “sole custody,” solely assigned to one parent.

The standard for allocating decision making responsibilities in Illinois is the child’s best interests. But what does that mean? Pursuant to statute, the court will consider the following factors when allocating parental responsibilities:

(1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;

(2) the child’s adjustment to his or her home, school, and community;

(3) the mental and physical health of all individuals involved;

(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;

(5) the level of each parent’s participation in past significant decision-making with respect to the child;

(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;

(7) the wishes of the parents;

(8) the child’s needs;

(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;

(10) whether a restriction on decision-making is appropriate under Section 603.10;

(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;

(12) the physical violence or threat of physical violence by the child’s parent directed against the child;

(13) the occurrence of abuse against the child or other member of the child’s household;

(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and

(15) any other factor that the court expressly finds to be relevant.

But what does that really mean? When may sole decision making authority be allocated to one parent only?

When parents cannot communicate and co-parent. When parents cannot communicate to discuss and resolve education, medical, religion, and extracurricular matters pertaining to their children, one parent may be allocated sole decision making authority.
When there is parental alienation involved, meaning most simply that there is psychological evidence that one parent is manipulating a child in order to alienate the child from the other parent. Parental alienation is complicated and difficult to properly identify. However, when it occurs, it can have a devastating effect on the child’s relationship with the non-alienating parent. In cases of proven parental alienation, the alienator may lose his or her decision making authority.
When there is child abuse or neglect.
In closing, judges’ ruling on sole custody is not very common, and most divorced couples prefer joint custody, as it is best for everyone. It will be interesting to see what unfolds in the Jolie-Pitt custody battle, but from an attorney’s perspective, unless Jolie is able to prove Pitt to be unfit, it is likely the couple will obtain joint custody.

¹ As of January 1, 2016, Illinois law no longer references “custody” in its statutes. Instead “allocation of parental responsibilities” replaced the term “custody”. References herein to “custody” are for simplicity. However, Illinois law no longer provides for sole or joint “custody”. Further, the analysis set forth herein is pursuant to Illinois law.

Erin B. Bodendorfer is an Associate at Chicago family law firm Katz & Stefani LLC.

Posted on December 29, 2016