Many divorced parents share physical custody of their children, moving them between households every few days or every other week. In other cases, a judge may decide that giving only one parent custody would better serve a child's best interests.
This article provides an overview of child custody and visitation in Illinois. If you still have questions after reading this article, you should contact a local family law attorney for advice.
Illinois' custody and visitation laws distinguish between physical and legal custody. A parent(s) with "physical custody" lives with the child. A parent with "legal custody" can make major medical, educational, or religious decisions on the child's behalf. Depending on the child's best interests, a judge may award one parent sole legal and physical custody, joint custody to both parents, or some other combination.
The parent who has primary physical custody of the child is designated as the "custodial parent". The other parent – even if he or she shares physical custody of the child – is called the "noncustodial parent". See 750 Ill. Comp. Stat. § 5/602.5 (2020).
A child's best interests dictate that the child should spend adequate time with each parent as long as it doesn't pose a risk to the child's safety, stability, or well-being. This means the noncustodial parent should have reasonable visitation with his or her children. What's reasonable depends on your family's unique circumstances, including the children's ages.
In most cases, a noncustodial parent is entitled to at least the minimum visitation schedule set forth under Illinois law with visitation one week night per week, overnights every other weekend, and an extended summer visit.
Illinois courts can deviate from the minimum visitation schedule or modify visitation terms if a parent shows that an adjustment is in the child's best interests. For example, a noncustodial parent who moves internationally might request less frequent but longer visits.
Courts start with the assumption that in most cases, a child's best interests are fostered by having a healthy and close relationship with both parents. As a result, Illinois law provides that a court may restrict a noncustodial parent's visitation rights only if the court finds, after a hearing, that visitation would seriously endanger the child's physical, mental, moral, or emotional health.
A custodial parent can't unilaterally restrict the other parent's visitation rights unless it's an emergency situation and necessary to protect the child. Visitation isn't for the parents, it's for the children and the court's primary concern is their welfare. Even in cases of serious abuse, a judge is likely to permit some visitation and add supervision or other restrictions to ensure the child's safety.
Specifically, if the court decides visitation should be restricted, it will tailor the restriction to the particular problem it has identified. For example, a court might:
There's no specific age at which a child can refuse visits; however, it may be harder to force a teenager to cooperate with visitation than a toddler. A child won't face sanctions for avoiding visits, but the other parent can face consequences. Each parent has the responsibility to encourage and facilitate visitation between the child and other parent.
Older children may express a preference in a custody case, but even then, the child's wishes won't be the deciding factor in your case. An older child's preference will be given significant weight when it comes to custody, but a court will only cut off a parent's visitation in the most extreme circumstances.
Mental illness or substance abuse by itself is not enough to restrict a parent's visitation rights. For example, a court preserved a mother's visitation rights even though she was confined in a penitentiary for murdering her husband. In most cases, a child's best interests are served by preserving visitation.
Unlike parents, grandparents do not have an automatic legal right to visitation. However, under certain circumstances, a grandparent, great-grandparent, or sibling who has been denied reasonable visitation may file a request with the court asking for a visitation order. They can make such a request if:
The court will issue a visitation order if it determines that visitation is in the best interests of the child. Other relatives, such as aunts, uncles, and cousins, do not have any legal right to visitation, even if the child has lived with them or been very close to them.
One parent's denial of visits won't result in an automatic change of custody. A judge won't adjust a custody award unless there's been a material change in circumstances. However, if one parent is consistently denying any sort of visitation and preventing the child from having a relationship with the other parent – a court may intervene.
One of a factors a judge assessing in determining a child's best interests is each parent's willingness to foster a relationship between the child and the other parent. A custodial mother could lose sole custody if she's consistently preventing visits and communication between the child and the other parent.
Child support and visitation rights are separate things and a parent who won't or can't pay child support is still entitled to regular visits with the child. Child support, like custody, is for the child's benefit – not the other parent. Courts presume, unless there's evidence to the contrary, that children do better when they see both parents regularly.
If you aren't receiving court-ordered child support from your child's other parent (the paying parent), contact Illinois Child Support Services or consult an attorney for help.