If you're splitting with your child's other parent, you'll have to deal with the question of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Illinois law deals with these issues.
There are two aspects to child custody: legal custody and physical custody. Illinois law now uses the umbrella term "parental responsibilities" instead of custody, along with the terms "decision-making responsibility" (legal custody) and "parenting time" (essentially a combination of physical custody and visitation).
Although the names are different, the concepts are basically the same. So we'll use these terms interchangeably.
Legal custody—what Illinois calls "significant decision-making responsibility"—concerns parents' rights to make the important decisions in a child's life, including:
Even when parents share joint decision-making responsibility, the judge might split their authority between different issues, such as giving one parent the right to decide on the child's education, while the other decides on religious upbringing.
Illinois law prefers that parents share this responsibility. Still, judges may give one parent full decision-making authority (also known as sole legal custody) if that's best for the child. (750 Ill. Comp. Stat. § 5/602.5 (2023).)
Parenting time refers to where a child lives and how much time the child spends with each parent. All parents in Illinois, whether or not they have significant decision-making responsibilities, are legally entitled to reasonable parenting time with their children, unless it would seriously endanger the child's "physical, mental, moral, or emotional health." (750 Ill. Comp. Stat. § 5/602.7(b), 5/602.8 (2023).)
Usually, the parent designated as the custodial parent has the child most of the time. But even when parents have roughly equal parenting time (sometimes called joint physical custody), one of them might have this designation when it's necessary (such as for school enrollment). (750 Ill. Comp. Stat. § 5/606.10 (2023).)
When parents have their children with them under the parenting time schedule, they have the right to make routine child-related decisions (such as bedtime and homework), as well as emergency decisions affecting their kids' health and safety. (750 Ill. Comp. Stat. § 5/602.5(d) (2023).)
You always have the option of agreeing with your co-parent on custody and visitation issues. In fact, the vast majority of divorcing parents reach an agreement at some point in the process, to save the expense and stress of a trial.
You'll need to spell out the details of your agreement in a written parenting plan and submit it to the court. The judge will approve the plan unless it's not in the child's best interests.
Illinois law requires that parenting plans include at least the following:
Ordinarily, the more detailed the parenting plan the better. Note that if you meet the criteria for filing for divorce online, the questionnaires for some of the reputable services may walk you through preparing a parenting plan.
When parents can't agree on a joint parenting plan, each of them should submit a proposed plan to the court. A judge will then hold a trial to decide on a plan that will be in the child's best interests. (750 Ill. Comp. Stat. §§ 5/602.10 (2023).)
Illinois law requires judges to consider a long list of factors when they're deciding what would be best for children, including:
When judges are deciding how to allocate significant decision-making responsibilities, they must also consider each parent's history of making those decisions for the child's life.
And when it comes to deciding on parenting time, judges must also consider:
Illinois law doesn't presume that either parent is better able to serve the best interests of the child based on gender.
Also, when judges are deciding how to allocate parenting time, they may not consider a parent's conduct unless it affects the parent-child relationship. (750 Ill. Comp. Stat. § 5/602.7(c) (2023).)
Illinois law doesn't set any age limit for a child to be able to express a custody preference. Rather, judges will take into account the child's maturity and ability to express a reasoned and independent opinion on the issue. (750 Ill. Comp. Stat. §§ 5/602.5(c)(1), 5/602.7(b)(2) (2023).)
Normally, judges will interview children in chambers (the judge's office) to learn about their custody preferences. (750 Ill. Comp. Stat. § 5/604.10(a) (2023).)
It's fairly standard for judges to have trained professionals (typically psychologists or social workers) conduct a custody/parenting time evaluation, which will focus on what would be in the children's best interests. (750 Ill. Comp. Stat. § 5/604.10(b) (2023).)
In particularly contentious custody cases, the children may need to be represented by their own attorney. The judge may also appoint an attorney to serve as a guardian ad litem or "child representative" to represent the children's best interests. (750 Ill. Comp. Stat. § 5/506 (2023).)
The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to custody or parenting time. Here again, you and the other parent may agree to a modification of your parenting plan or decision-making responsibility. When you submit your agreement to the court, along with a modification motion (written legal request), the judge will approve it unless it's not in the child's best interests.
If you can't agree on a modification, the judge will have to decide whether to grant the request. Generally, Illinois judges may not modify parenting plans or decision-making responsibility unless the requesting parent proves that:
There are limited exceptions to the changed-circumstances requirement, including when the requested modification is minor or is consistent with what the parents have voluntarily been doing for the last six months.
If you're requesting only a change in decision-making responsibility (not in parenting time), you generally must wait at least two years since the current order was issued—unless the current situation is endangering the child.
(750 Ill. Comp. Stat. § 5/610.5 (2023).)
If a parent isn't complying with an approved parenting plan or custody orders, the other parent may file a motion asking the court to enforce the orders. Illinois law takes enforcement of parenting time so seriously that it requires courts to handle these requests quickly.
If a judge finds that the parent has in fact violated parenting time, the judge may issue any of a number of orders to enforce custody and promote the child's best interests, including
Additionally, if a parent has withheld visitation (that is, failed to provide court-ordered parenting time) or failed to exercise parenting time rights, the judge must order that parent to pay the other's attorney's fees and expenses. But if the judge finds that there wasn't a violation, the parent who filed the enforcement request might have to pay the other parent's fees and costs. (750 Ill. Comp. Stat. § 5/607.5 (2023).)
Be aware that rights to parenting time are separate from child support obligations. So a custodial parent isn't allowed to withhold visitation because the other parent isn't keeping up with child support payments. On the flip side, a noncustodial parent may not withhold child support because parenting time is being denied.
Also, you should know that interference with parenting time is petty offense under Illinois criminal law, or a Class A misdemeanor for the third conviction. (720 Ill. Comp. Stat. § 5/10-5.5 (2023).)
Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with Illinois law and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.
It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with custody mediation. And if you haven't already agreed on a parenting plan by the time you file for divorce or another custody proceeding, the court will almost always require you to participate in mediation. (750 Ill. Comp. Stat. § 5/602.10(c) (2023).)
But if mediation doesn't work or isn't appropriate (such as in custody cases involving domestic violence), you should consider speaking with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.