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Common Misconceptions about Child Custody

Interviewer: What would you say are some of the top misconceptions that people have about custody? I know you mentioned one earlier.

Joint Custody

Mark Kezy: One of the top misconceptions about custody is that joint custody means that the children are going to reside with both parents equally. As I explained, that’s really not the case. There’s sole custody and there’s joint custody, but it’s regardless of whether you have a joint custody or sole custody arrangement. The children are going to still reside with one parent on a day-to-day basis. And again, that the other parent has the right to visitation and the obligation to pay support.That doesn’t mean that the children can’t reside with both parents on an equal basis. That really depends more on their previous arrangements and their ability to make that arrangement work now.

Visitation Schedule

Interviewer: I’m in my mid-30s, and back in my day, the norm was that my mom would take care of me and I would go see my father every other weekend. Is that still a common arrangement?

Mark Kezy: It really depends each family’s circumstances. It depends on the parents’ work schedules. It depends on the child’s school schedules. It depends on the child’s extracurricular activity schedules. I guess what you’re asking me is, is there a generally accepted visitation schedule or parenting schedule?

Interviewer: Exactly. In my day, every divorced family seemed to have a similar schedule.

Mark Kezy: I’ve seen a progression over time. When I first started out, more children ended up living with their mother than with their father because 20-some years ago, it was still more prevalent that the mother was a stay-at-home mom or that the mom worked locally and was more involved in taking care of the kids than the father was. When I first started out, I saw more of the alternating weekends. Alternating weekends were the norm because, at that time, you had a situation where one person was primarily responsible for taking care of the day-to-day stuff of the children.

The courts still had the notion that the children should go to bed and wake up Monday through Friday in the same bed or same place. You had the notion that one person was primarily responsible for taking care of the kids. Based on the normal work schedule, it wouldn’t make sense to give the other parent parenting time during the week, because they wouldn’t be available.

Now that things have changed over time and you see both people in the workforce, both people are responsible for taking care of the kids. We’ve seen a lot of changes in what was considered the norm, because the parenting time that people are given is based more and more on their availability to take care of the kids. A parent who is a fireman, for example, might be on one day and off two.

Say, for instance, that the mom works Monday through Friday from 7 am until 5 pm. The dad is a fireman and he’s on one day, off two. If the child is an infant or before school age, the mother would have to find a babysitter or somebody to care for the children on the days when she’s working. In that circumstance, the father could step in and say, “Well, wait a minute. Why would we send the kid off to a babysitter on the two days that I’m off when I’m available to take care of the child?”

Do you see the difference there? It really depends on the situation. Alternating weekends used to be the norm, but again, times have changed. When coming up with the parenting arrangements and the visitation arrangements, you have to really look at each family individually, at their individual work schedules, at the children’s schedules, and the availability of the individual parents to care for the children.

Interviewer: Do you see people in their 30s or 40s having that misconception often, that the mothers will keep the kids and the fathers will have every other weekend?

Mark Kezy: Now more than ever, you have parents who were both very much involved in the care of the children. Resolving the custody is a little more difficult. Again, if when you were growing up, your mom was a stay-at-home mom and your dad went off to work to support the family, that was easy. In that circumstance, the court would say, “Well, why upset the applecart? Why should the mother not continue to be the primary caretaker?”

Ultimately, the father would agree, but now the lines are very blurred. Unlike years before, in a lot of circumstances, there is no clear-cut person who is the primary caretaker. Both people are in the workforce. Both people are working to help support the family. Both people are involved in taking care of the kids because, ultimately, they have to. The lines as to who is the primary caretaker or who has been the caretaker are not so clear anymore.

Often, now, the father will say, “Well, I was just as involved in taking care of the children as she was. Why should I give that up?” That has made the custody battles a little bit more difficult.

Gender Bias

Mark Kezy: Another misconception is that there is a predisposition towards a mother or woman in custody cases. When I first started, I would say that that was true, more or less. Now, that is not the case. What I’ll say is that courts are very pro-status quo when when it comes to determining custody. What I mean by that is that the status quo really is the starting point in any custody or visitation case. What were the parties’ arrangements prior to the divorce?

I’m 48 years old. When I was growing up, the norm was a household where Mom stayed home and took care of the kids. Dad went to work, and Mom fed you and got you to school, welcomed you home, made your snack, got you to practice, helped you with your homework, and made dinner.

Dad, when he walked in at 5:00 or 6:00 at night, might sit down and play with you and eat dinner. That was really it. That was the norm at the time, and that’s what I mean about status quo. In that era, the judge would look at those arrangements and see that if the mom was a stay-at-home mom and the dad went to work, the mom was the one primarily responsible for taking care of the kids. That was the status quo.

At that time, because the norm was that women were stay-at-home parents, there was a general predisposition towards women. As times changed, more and more women went into the workforce, and now the generally accepted standard is that both parents work. There was a shift. Not only both are parents are involved in taking care of the kids, but in lot of situations, the dad is the person taking on more of the responsibilities.

Here’s an example. My office is in Chicago, and in the Chicago area, you get a lot of people that commute from the suburbs into the city to work.

Years ago, I had a client who worked in the suburbs in the trades. His wife worked in the city. She was out of the door and on a train by 6 am and getting home at 7, 7:30at night. The husband who worked locally, in the trades, was the one who got fed the kids breakfast and got them off to school. Because he was in the trades, he was generally home by 3:30 or 4, and because he was local, he was the one who was there.

In that situation, he was the one who was there when the kids got off the bus, who fed them their snacks, checked their homework, and took them to softball practice. Even though the wife was involved in the care of the kids, he had more of the day-to-day responsibilities.

In a custody battle in a situation like that, the courts will say, ““Well, if that’s the status quo, if that’s what they had been doing for years, then why should we upset that applecart?

In this day and age, there’s really not a predisposition towards mothers or a prejudice against fathers. The real question is, what is the status quo? What were the parental arrangements that these people had in the years leading up to the divorce? Given that, the real question is in the judge’s mind, “Why should we upset that applecart?”

The Will of the Child

Another misconception that people have is that a child or children can, at some point in the process, tell the judge where they’re going to reside. I will say that in Illinois, the courts do look at the wishes of the children. Again, one of the most important things in resolving the custody issue is the status quo, the parenting arrangements that the parties had for the years leading up to the divorce.

Again, the starting point of the discussion is the status quo, but t the courts also look at is the wishes of the children. Who do they want to live with? What type of visitation arrangements do they want?

The courts will take into consideration the wishes of the children. People often ask, at what age can the children tell the judge where they want to live and what type of visitation? There’s no such age. Again, the courts will take into consideration what the children want. How much weight they give to the children’s wishes depends on the children’s age, but also on the maturity level of the children, and, even more importantly, on the reasons for the children’s wishes.

As an example, say you have a child who is 16 years old, and she comes in and they say, “Well, I want to go live with my dad”. Why does she want to live with her dad? “Because my mom is mean.” Why is her mom mean? “Because she makes me come home by 9:00 and she makes me get my homework done before I go to bed,” or “She won’t let me go out and hang out with my buddies unless my homework’s done. She’s mean and if I go to my dad’s house, my dad doesn’t do that.” The court is going to look at that and say, first of all, it doesn’t sound like the child’s very mature. Second of all, the reasons that she’s giving for living with the dad are pretty bad reasons.

On the other hand, you might have a child who comes in at nine years old and says, “I want to go live with my dad.” This child might be mature for their age and say, “Well, I want to go live with my dad because my mom is an alcoholic and when I come home at night to her house, she’s drunk. When she comes in from work, she’s drunk and she passes out. I’m literally taking care of myself.” So in the first situation, a 16-year-old doesn’t want to go live with her mom because her mom is being a parent. The child perceives that the parent is being mean because the parent is doing what they’re supposed to do. In the second situation, the 9-year-old child has very good reason to want to live with the other parent.

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