“Custody” is a legal term that describes a parent’s rights and responsibilities to care for and control a child. You will save time and money if you and the other parent of your child can agree to a custody arrangement. If you can agree, you can present your agreement to the judge to make into a court order. If you and the other parent can’t agree to custody of your child, a judge will decide the issue for you after a trial.
How does a court determine custody?
A court determines custody based on what is in “the child’s best interest.” To determine what is in the child’s best interest, the judge considers any relevant facts. Some examples of relevant facts that the judge will consider include:
- the parents’ wishes
- the child’s wishes, depending on the child’s age, maturity and education
- the child's interaction with parents, siblings, and other people involved in the child’s life
- the child’s adjustment and attachment to home, school, and community
- the mental and physical health of the parents and child
- the existence or threat of physical violence by the parents against the child or another person
- the existence of ongoing or repeated abuse (physical, verbal, or emotional) of the child or another person
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, and
- whether one of the parents is a sex offender.
Every custody case is unique and the judge will decide how much each of these and other factors matter in determining custody of your child. However, Illinois law states that the court can’t consider the conduct of a parent that does not affect that parent’s relationship with the child.
Furthermore, unless there has been domestic violence, Illinois law presumes that it is in a child’s best interest for both parents to be as involved with the child as possible. However, the law in Illinois does not presume that joint custody is in a child’s best interest.
What is a custody evaluation?
When parents can't agree on custody, the court will hold a trial and a judge will decide who will have custody. The judge may ask a social worker or psychologist (“evaluator”) to conduct a child custody evaluation prior to the trial to assist the judge in making a decision.
The evaluator will meet with and interview the child and each parent. The evaluator may also administer psychological testing of the parents and child. The evaluator will then write a report that includes his or her impressions and opinions of the parents and the child for the judge to consider when deciding who should have custody. The parents will be charged for the costs of a custody evaluation.
(To learn more about these evaluations, see, Child Custody Evaluations During Divorce.)
What is a “guardian ad litem”?
In Illinois, a “guardian ad litem” is a lawyer who is appointed by the judge to investigate and inform the court about the best interests of the child. Usually, a guardian ad litem will meet with the child and each parent. The guardian ad litem might also talk with other people involved with the child, like teachers, babysitters, grandparents, or doctors. The guardian ad litem will then report the findings to the judge to assist the judge in making a custody decision. The parents have to pay for the services of a guardian ad litem.
What is child custody mediation?
Some courts in Illinois have special mediation programs to help parents settle custody disputes. If the parents can’t agree on custody, the court can require the parents to attend mediation prior to holding a custody trial. In general, child custody mediation is a way for parents to come to an agreement about child custody themselves. A mediator is neutral person, specially trained and appointed by the court, who helps parents talk with each other and come to an agreement about custody.
Usually, mediation is cheaper and quicker than having a judge decide custody after a trial. Unlike having a custody trial, mediation is confidential and won’t be shared with the judge or anyone else. The parties are charged for the mediator’s services.
If the parents can’t agree after mediation, then the case will go to trial and the judge will decide who gets custody based on the best interests of child discussed above.
Does the child have a say in child custody?
Depending on the child’s age and maturity, the judge may consider the child’s wishes when deciding custody. The parents may testify about what the child wants, or a guardian ad litem may inform the court of the child’s wishes. The judge may also speak directly with the child, but generally, courts prefer to have a guardian ad litem or other professional speak for the child to avoid involving the child in the court proceedings.
What if I don’t get custody?
In Illinois, a parent who is not awarded custody has the right to reasonable visitation with the child, unless the parent is a danger to the child. Usually, when a judge decides which parent gets custody, the judge will also decide what the visitation schedule should be and put both the custody and visitation schedule in a court order. Depending on the circumstances, visitation commonly includes overnight visits on weekends, some additional time during the week, vacation and holiday time. Visitation may also include phone calls or internet communication.
To learn more about visitation rights, see Illinois Child Visitation FAQs.
