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The terms “custody” and “visitation” are words of the past—at least when it comes to family law in Illinois. As of January 1, 2016, courts will no longer award custody or visitation, but will now “allocate parental responsibilities” and “parenting time.”

Before explaining, I want to say that this is a good change and constitutes more than just the use of new jargon. For so long, we used prison terms for the living and parenting arrangements of children in divorces. That just didn’t work. Parents caught up in the divorce system often fought for custody without knowing what that really meant other than they knew they had to “win;” they had to get “custody.”

That said, how does this change in the law mean for parents and children?

Under the new law, parental responsibilities are broken into categories-- education, health, religion, and extra-curricular activities. The Court can allocate the respective responsibilities either jointly or solely to the parents—meaning one parent makes those decisions alone or both parents make those decisions together. So, for example, if one parent has traditionally chosen the medical professionals, made appointments and taken the children to them, that parent should presumably be allocated that responsibility going forward. This allows the parents to, in some cases, divide up the responsibilities—hopefully by agreement—giving them each a say in how their children are raised. Or, better yet, they can both make those decisions jointly.

This law is important because it changes the way parents should be viewing post-divorce parenting. It should not be a fight to see who is the best parent and who gets to dominate their children’s issues. The law approaches the issue in terms of sharing parenting decisions based upon who traditionally filled those roles and who is best to do so in the future. And remember, the law presumes that both parents are fit to make those decisions jointly and should do so in a perfect world.

Litigation (proceedings in court) are, by nature, adversarial. There are winners and losers. Parenting issues should not be decided in adversary proceedings. The proceedings should start out with the idea that parents should have a say so in the important decisions made for their children and should work together to make those decisions with the constant eye towards the children’s best interests, not their own. And, if parents cannot agree, neutral third-parties should be brought in to mediate to bring the parents together in agreement.

This brings me to a final note. When choosing an attorney, divorcing parents should make sure that they choose one who understands that compromise and working together are positive goals and who knows how to facilitate discussions towards resolution, not stand in the way. A lawyer who doesn’t possess these skills can sometime throw a wrench in what could be a peaceable, amicable process.

I always remember Abraham Lincoln’s advice to lawyers:

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man.” (Writer’s addition: or good woman!)

Karen Conti practices family law and is a certified mediator and collaborative lawyer.
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