During a divorce, parents have a lot of questions about child custody and child support. Here are some questions and answers that may help.
Under Illinois law, parents have joint custody if they have a joint parenting agreement or an order that defines each parent’s rights and responsibilities relating to the child’s health, education, and religious upbringing. The agreement or order must provide for periodic review of its terms by the parents, and specify how they will negotiate disputes. Parents may agree to joint custody or a court may order it if the parents seem capable of working together on their child’s behalf. Joint custody does not necessarily mean that the child will be with each parent an equal amount of time, only that both parents will have significant parenting time.
Conversely, sole custody does not mean that the child will be with one parent all of the time; in almost all cases, the non-custodial parent will have visitation rights. A parent with sole custody has the authority to make major decisions affecting the child without consulting the other parent, but except in very unusual circumstances, the other parent will be able to make ordinary day to day decisions while with the child and will have access to the child’s medical and school records.
A child’s wishes are one factor an Illinois judge may consider in determining parenting arrangements. The law does not require that the child be any particular age, but the older and more mature a child is the greater chance a judge will give the child’s wishes substantial weight. A judge may interview a child or seek the opinion of a custody evaluator.
Judges base custody decisions on a child’s best interests overall, so the child’s wishes will never be the sole determining factor. Other factors include the wishes of both parents; the child’s overall adjustment to home, school and community; the desirability of facilitating continuing relationships with siblings and other people who are important to the child; and the ability of each parent to encourage a positive and ongoing relationship between the child and the other parent.
Illinois child support guidelines require a non-custodial parent to pay a minimum percentage of net income (income remaining after deduction of certain expenses). The percentage increases according to the number of children, so that a parent with one child pays a minimum of 20%, while a parent with 6 or more children pays at least 50%. The court will deviate from guideline support only where the statutory guidelines do not appropriately address the real needs of the children. For example, a very high income parent may sometimes be able to pay less than guideline amounts while a very low income parent may have to pay somewhat more. A court may add necessary expenses, such as daycare, to the guideline amounts.
A non-custodial parent ordinarily pays support until a child turns 18, but the obligation continues until age 19 for a child still in high school, and may continue indefinitely if a child is mentally or physically disabled. Illinois is one of a few states in which judges will sometimes order a non-custodial parent to contribute to a child’s costs of attending college. Such awards will be made on a case-by-case basis.
A parent cannot avoid a child support obligation by quitting a job. A court may order an unemployed parent to seek work and document efforts to do so. If a parent is voluntarily unemployed or underemployed, is attempting to evade a support obligation, or has unreasonably failed to take advantage of available employment opportunities, the court can impute income to that parent. This means that the court would order child support based either on the person's most recent employment income or on the amount of income the person could reasonably be expected to earn based on training, experience and available jobs in the area.
(To learn more about imputed income, see our article, "Imputing Income for Child Support").
Whether or not a parent is dating would not ordinarily have any impact on visitation, but there are exceptions. If one parent believes that the other parent is behaving inappropriately with a new partner around the children or that the new partner poses a threat to the children for some reason, the concerned parent could ask the court to order that the partner not be present during visitation. However, whether there is any real risk to the children is for the court to decide; a parent cannot unilaterally change a custody or visitation order that is already in effect. Furthermore, if a judge believes that the request is groundless and motivated by jealousy or vindictiveness, it is very likely to backfire. Illinois law presumes that it is usually in a child’s best interest to spend a significant amount of time with each parent. A judge would probably be more inclined to reduce the parenting time of a parent who is interfering with the child’s relationship with the other parent than to reduce the time of a parent who simply has a new partner.
The recipient of child support does not need to include it in taxable income, nor is the payor able to deduct it. However spousal maintenance (also referred to as spousal support or alimony) is taxable to the recipient and may be deducted by the payor.