Illinois, like all other states, requires judges to determine child custody based on the best interests of the child. Below, you'll find answers to common questions about how Illinois courts decide this important issue.
When does an Illinois court have jurisdiction to decide a child's custody?
This issue comes up when the parents live in different states or a parent has recently moved into or out of the state. In order to avoid conflicting custody opinions from courts in different states, a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets the rules on which court has jurisdiction. (Jurisdiction refers to the court's legal right to make binding decisions involving the parties to a lawsuit.)
Among other things, the UCCJEA determines which state is the child's "home state" for custody matters. Courts in the home state have jurisdiction over custody litigation involving that child -- and the courts of the child's home state are the only ones that can hear a custody case for that child.
Illinois has jurisdiction to hear a child custody case if:
- The child has lived in Illinois for at least the last six months (or since birth, if the child is not yet six months old).
- The child lives out of state, but lived in Illinois within the past six months and one of the child's parents still lives in the state.
- No other state is the child's home state (or the child's home state has declined to exercise jurisdiction in deference to Illinois), and either (1) the child and at least one parent have significant connections with Illinois, and (2) substantial evidence exists in Illinois concerning the child's care, protection, training, and personal relationships.
If you aren't certain whether your child custody case should be heard in Illinois or in another state, you should consult with an experienced attorney.
What factors are to considered in awarding custody?
The court must ultimately determine what would be in the child's best interests. The emphasis in a custody determination is not on which parent is "better" or "worse," but on the child's best interests considering all relevant factors, including but not limited to:
- the wishes of the child's parent or parents as to who will have custody of the child
- the wishes of the child about which parent will have custody
- the interaction and relationship of the child with his or her parent(s), sibling(s), and anyone else who may significantly affect the child's best interest
- the child's adjustment to his or her home, school, and community
- the mental and physical health of everyone involved
- whether there has been physical violence or a threat of physical violence by the child's potential custodian, whether directed against the child or another person
- whether there has been ongoing or repeated domestic violence, whether directed against the child or directed against 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
- whether either parent is a sex offender, and
- the terms of either parent's military family care plan that must be completed before deployment, if the parent is a member of the U.S. Armed Forces who is being deployed.
Every custody case is unique, and the court is free to decide what weight to give to these and other factors in making its decision. However, the statute expressly says that the court should not consider a parent's conduct unless it affects that parent's relationship with the child.
What types of custody arrangements are available?
In Illinois (as in other states), courts distinguish between legal and physical custody. Legal custody gives a parent the right to make important decisions about raising the child, such as where the child will go to school, religious training, and so on. Physical custody refers to where the child actually lives.
A court can award joint custody to both parents or sole custody to either.
Does Illinois law favor joint custody arrangements?
Unlike some states, Illinois doesn't presume that joint custody is in the child's best interests. Unless these has been domestic violence, however, Illinois law instructs courts to presume that the maximum involvement and cooperation of both parents in their child's physical and emotional well-being serves the best interests of the child.
Must a mother be declared unfit before a father will be awarded custody?
No. Although many custody laws used to presume that at least younger children (those of "tender years") should be with their mother, that is no longer the case. Parents have equal rights to custody of their children. A parent's fitness is one element to be considered in determining what is in a child's best interest.
Do children have any say in custody decisions?
Yes, but the child's wishes are not the last word on the matter. The custody preferences of mature children are given considerable weight when they are based on sound reasoning, especially where the reasons relate to the child's best interests, such as a desire to remain with friends, to continue attending the same school, and to remain in the same environment. Of course, a child's preference may not always accord with his or her best interests, and the court must use its own wisdom and common sense in making a custody award.
How important is the status quo in a court's custody decision?
As a practical matter, courts are unlikely to disrupt an acceptable status quo in favor of an unknown alternative. If the children appear to be well-adjusted and the custody situation is working, a court will be more inclined to leave well enough alone. The reason repeatedly given is "the importance of maintaining stability and continuity in a young child's environment." If all other things appear equal between the parents, maintaining the children's stability is often stated as the dispositive factor. Courts will not hesitate to remove a child from an unstable environment, on the other hand, especially where it can be shown that the child is not thriving.
Are siblings always kept together, or will a court split custody?
It is usually considered to be in the best interests of siblings that they be kept together, not separated. There are, however, exceptions. Where the special needs or problems of a child appear to requires separation, the courts will split children between the parents. The parent who wants to split up siblings will have to convince the court that it's necessary.
What impact does a parent's psychological problems have on the custody decision?
Existence of a mental illness, psychological problem, or substance abuse does not, per se, render a parent unfit for child custody. These are factors to be considered by the court in deciding the best interests of the child. For example, if a parent has a significant, long-standing, and pervasive history of bizarre behavior and ideas not merely related to the stress of the divorce, and these would have an adverse effect on the children and the parent's ability to care for them, a court may appropriately decide that the children's best interests are served by granting custody to the other parent.
The courts appear to weigh carefully the effect of a substance abuse problem or mental illness specifically on the proposed custodian's ability to parent. Courts are aware that treatment can help a parent overcome problems that plague a parent during the marriage. Seeking treatment and making progress, however, does not mean a parent must receive custody. The court must consider what impact the parent's problems will have on the child in deciding what custody arrangements will be in the child's best interests.
What impact does a parent's new spouse, live-in companion, or other person sharing the home have on a custody decision?
If another person will come in contact with or influence the child by reason of a remarriage or otherwise in a child's or parent's living situation, and there is a basis for concern about the stability of the child's environment, the mental condition and character of that other person are relevant in an initial custody or modification proceeding.
If one parent intends to marry or live with a sex offender, that parent must notify the other parent ahead of time.
Will spousal abuse affect custody?
It depends on the situation. Illinois law provides that when the court finds there has been ongoing abuse, it need not presume that the involvement and cooperation of both parents in raising the child is in the child's best interests. (Illinois law defines abuse as physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation; the law expressly states that a parent's "reasonable direction" of a minor child does not constitute abuse.) However, the law doesn't require a court to deny a parent custody based on this ground alone. It will depend on how the judge weighs all of the facts.
What are the rights of the child's custodial parent?
A child's legal custodian has the right to make important decisions about the child's upbringing, including but not limited to education, health care, and religious training. Custodial powers are not absolute, however. The noncustodial parent can ask the court to specifically limit the custodian's authority where necessary to the best interests of the child. Absent such a limitation, the right to control the education of a child encompasses the right to select the schools the child shall attend. However, courts recognize that a child's changing needs, including school needs, may require a change in custody arrangements in order to serve the child's best interest.
If a custodial parent wants to move out of state with the child, will this be permitted?
A child may not be removed permanently from the state without a court order. The parent who wants to relocate with the child out of state bears the burden of proving that the move is in the best interests of the child. A court must consider the following factors in determining whether a proposed move to another state is in the best interests of the child:
- whether the move will enhance the general quality of life for both the custodial parent and the child
- whether the custodial parent's proposed move is a ruse to frustrate or defeat the other parent's visitation rights with the child
- the motives of the noncustodial parent in resisting the removal
- the visitation rights of the noncustodial parent, and
- whether reasonable visitation schedule can be achieved if the move is allowed.
For a time, it was very difficult to obtain a court order permitting removal of a child, and the custodian might well be in the position of choosing between a child and a new spouse or important career move. This appears to be changing, but the parent seeking to move must prove that it is in the best interests of the child, not just the parent. Such issues as the type of housing, job opportunities, excellence of neighborhood and school, activities for the child, and a well-considered plan to keep the child in touch with the left-behind parent must be addressed. Some judicial districts in Illinois are more lenient about allowing removal than others. An experienced lawyer will know what to expect from the judges in your district.
May a parent take a child out of Illinois temporarily, such as for vacation?
Before a minor child is temporarily removed from Illinois, the parent responsible for the removal must inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached while out of state, and the date on which the child will return to Illinois.
May a custodial parent move the child far away within the state?
Unless the parties have agreed in writing to the contrary, a custodial parent may remove the children to another part of the state without a court order. However, because this will bring about a significant disruption in the child's relationship to the other parent, such a move could be considered a material change in the child's circumstance, which could be the foundation of a petition for custody modification.
Once custody has been awarded, under what circumstances may it be modified?
There are three situations when a parent can ask a court to modify a custody order:
- when both parents agree to the change
- when the child's present environment may seriously endanger the child's physical or mental health, or
- when at least two years have passed since the date of the custody order, a change has occurred in the circumstances of the child or parent(s), and a modification to the child custody order is necessary to serve the best interests of the child.
The changed circumstances must be based on facts that did not exist or were unknown to the parent seeking modification at the time the original order was entered. In other words, a parent can't simply return to court and relitigate the same issues the court has already considered. There must be new or previously unknown facts in play to justify a change.
What if the child decides he or she wants to live with the other parent?
The child's preference for a change of custody will not, by itself, constitute a sufficient cause for modification., even if the child's feelings are very strong, without showing that the welfare of the child is adversely affected by the present custodial arrangements. A showing that the child's functioning has deteriorated, or is at risk for deterioration, may support a change if the child's problems are shown to be the result of the present custodial environment.
When substantial changes have occurred in the circumstances of the child or custodian indicating that adverse effects to the child are likely and custody modification is necessary for his or her best interests, the ill effects of the changed circumstances need not manifest themselves before a court can alter custody. The likelihood of harm must, however, be established.
What happens if the custodial parent becomes unavailable, as by death or incarceration?
Death of the custodial parent is a significant change in circumstances that would require custody modification. Upon the death of the custodial parent, the traditional rule is that the other parent gains legal custody of the child.
Incarceration of a parent is also a material change of circumstances giving rise to custody modification. An incarcerated parent may make emergency arrangements for the child's immediate care, but cannot dictate that a third party continue to act as custodian for the child for the duration of his or her incarceration, defeating the noncustodial parent's right to petition for a change of custody.
Will a custodial parent's misconduct lead to custody modification?
It depends on whether the parent's behavior affects the child. Indulgence in "moral indiscretions" alone is not grounds for a change of custody if the children are leading a normal life. If the actions of a custodial parent seriously endanger the mental or emotional health of the child, however, a change in custody may be called for. Illinois law forbids courts from considering a parent's conduct in awarding custody unless that conduct affects the parent's relationship with the child.