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Child Custody Issues

To get answers to frequent questions about child custody issues and divorce in Illinois, please select one of the links below:

What criteria does a court consider in awarding custody?

Any criteria or factor that could help the court determine what is in the best interest of the minor child will be considered by the court since this is the standard for custody determination under the Illinois Marriage and Dissolution of Marriage Act and the Parentage Act. These factors include but are not limited to:

  1. The wishes of the child's parent or parents as to his custody;

  2. The wishes of the child as to his or her preferred custodian;

  3. The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

  4. The child's adjustment to his home, school and community;

  5. The mental and physical health of all individuals involved;

  6. The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

  7. The occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and

  8. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

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When making a custody determination, does the court always keep siblings together or can the court divide the siblings?

It is usually considered to be in the best interest of the children that they not be separated, however this not a rule without exceptions since this is only one factor to be considered by the court in determining the best interest of the child.

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What is joint custody?

This term is often misunderstood by parties entering into the divorce process.

Many people are under the misconception that having joint custody of their children means that each parent will have possession the children half of the time. This concept is known as shared custody and is not what the term joint custody means. Joint custody has nothing to do with how much time the children spend with each parent.

Rather, joint custody means that both parents have equal input in the major decisions which effect their children's lives. Major decisions usually involve religious, educational and health care issues. The children will typically live with one parent on a primary or residential basis. This parent will be known as the residential custodian.

In most joint custody cases, if there is a dispute with regard to joint custody, the parties must first consult with a mediator to resolve the dispute. In the event the dispute is not resolved, then either party has the right to petition the court to resolve the issue. The Joint Parenting Agreement entered into by the parents must set forth:

  1. How decisions affecting the children are to be shared;
  2. A means of resolving disputes between the parents which usually includes mediation; and
  3. A periodic review of its terms.

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What is sole custody?

Sole custody usually means that the custodial parent has full decision making authority on issues related to the children such as medical care, choice of schools, and their religious upbringing. The children reside with the custodial parent subject to the visitation rights of the non-custodial parent.

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What factors will the court look at in determining which parent should be granted custody of the children?

The overriding consideration in awarding custody to one parent or the other is the child's best interests. To make that determination, the court considers “all relevant factors” which includes:

  • The wishes of the child as to his custodian;

  • The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

  • The child's adjustment to his home, school and community;

  • The mental and physical health of all individuals involved;

  • The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

  • The occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person; and

  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker.

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At what age can children decide where they want to live?

There is no specific age when a child can decide where he or she wishes to live.

Typically, if the child is old enough to articulate his or her custodial preference and has specific reasons why they want to live with a particular parent, the court will consider the child's preference. However, the court is not bound by that preference since it is only one factor that the court will consider in awarding custody.

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If I am seeing a therapist will this be held against me in a child custody proceeding?

Generally, the answer is no since Illinois has one of the strongest laws in the nation protecting the confidentiality of mental health communications. Communications with your counselor are confidential unless you waive this right.

There are several exceptions to the confidentiality rule including an exception if your mental health is placed “at issue” in the proceedings. However, Illinois law also provides that mental health is not deemed to be at issue merely because your spouse claims that it is at issue.

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Can I seek a change in custody of my child within two years of the entry of a prior custody order?

In order to bring a custody modification proceeding within two years of the entry of a prior custody order, the motion must be based on affidavits that indicate there is reason to believe the child's present environment may seriously endanger his or her physical, mental, moral or emotional health. The serious endangerment must be proven by clear and convincing evidence. The policy behind this law is to give stability to child custody determinations.

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If more than two years have passed since the prior custody order was entered, what has to be proven to modify custody?

The person seeking to modify custody has the burden to prove by clear and convincing evidence that there has been a substantial change in circumstances since the entry of the prior custody order or which was unknown at the time of the entry of the prior custody order which results in a need to modify custody to serve the best interest of the child. Circumstances which existed before the entry of the prior custody order are generally not admissible.

You will have the burden to overcome the stability factor which is considered by the court in all custody modification proceedings which addresses the child's adjustment to home, school, and community. This factor will almost always favor the child's current residential custodian.

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How much visitation is the non-custodial parent entitled to receive?

In the majority of cases, the parent with whom the children do not reside is entitled to visitation. This is true regardless of whether it is a sole custody or joint custody situation.

The frequency and duration of visitation is determined by what is in the best interests of the children. Normally, the non-residential parent will have visitation every other weekend, one or two evenings during the week from after school through bed time and on alternating holidays. Extended visitation often takes place during the children’s winter, spring and summer breaks from school.

Every case is different with the goal being a visitation schedule that best serves your children’s needs.

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Under what circumstances will visitation be prohibited or restricted?

In order to restrict the non-residential parent’s visitation rights, the residential parent must prove that visitation would endanger the welfare of the child. In most circumstances, a parent's behavior which is not shown to have an adverse effect on the child will not be considered in granting, denying or restricting visitation.

If, however, the court finds that the child's well-being may be endangered because of the parent's behavior, visitation may be prohibited or restricted. Restrictions on visitation may include a prohibition against overnight visitation, a requirement that visitation occur in a specific location, or the requirement that visitation be supervised.

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Can grandparents or other relatives obtain court ordered visitation?

In very restricted circumstances reasonable visitation privileges may be granted to a grandparent, great-grandparent, or sibling of a child. If the circumstances exist that would grant the grandparent, great-grandparent, or sibling of a child standing to seek visitation, then the primary focus of the court is to determine whether there is an "unreasonable denial of visitation" and whether the visitation would be in the best interest of the child.

It would be advisable to consult with an attorney to determine if you met the requisite criteria to seek visitation.

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Does the custodial parent need court approval to remove my child from the State of Illinois?

Vacations can be taken with the children out of Illinois without a specific court order assuming that prior notice has been given to the other parent concerning the children's whereabouts. However, you must have the consent of the other parent or court approval to remove or relocate the child from the State of Illinois on a permanent basis.

Illinois law allows the court to grant leave, before or after a judgment for dissolution of marriage is entered, to any parent having custody of a child to remove the child from Illinois whenever the removal is in the best interests of the child.

The burden of proving that the removal is in the best interests of the child is on the party seeking the removal. The key criteria that the court will consider in removal proceedings are:

  1. The current visitation rights of the non-custodial parent;
  2. Whether a realistic and reasonable visitation schedule can be awarded to the non-custodial parent if the removal were granted;
  3. The likelihood that the move will enhance the general quality of life of the custodial parent and the child; and
  4. The motives of each parent.

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    Photo - archThe purpose of this frequently asked questions (FAQs) are to provide a general overview of certain Illinois family law issues. These FAQs are not intended to provide legal advice that applies to any specific case. The nature of family law proceedings is that the facts and circumstances of each case are critical when a lawyer provides legal advice. Further, these FAQs are not intended to be inclusive or to deal with every situation that may arise in matrimonial disputes. You should discuss with your attorney how the particulars of these Questions and Answers may apply to your case.

    Hopefully these FAQs will serve at least two purposes for you. It can give you a working familiarity with some basic concepts in Illinois family law so that when you meet with your attorney you will be in a better position to discuss various issues and to use your time efficiently. Because you will likely be receiving a tremendous amount of information in your initial consultation with your attorney, these FAQs might also help you retain critical information and refresh your recollection of what your attorney told you.

    The statements contained in these FAQs do not necessarily reflect the positions of the Illinois Chapter of the American Academy of Matrimonial Lawyers.


For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at info@aaml-illinois.org.

 

 
 
   

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