If you’re seeking an Illinois divorce and have a child or children, you may be wondering how a judge will decide custody. You may also want to know how can you get full custody in Illinois and what criteria a judge uses to determine a child’s best interests?
This article provides an overview of Illinois custody laws and answers to common questions about custody in Illinois. If you have additional questions after reading this article, contact a local family law attorney for advice.
Divorcing parents who live in Illinois will receive a custody order as part of their divorce case. Things can get complicated if parents live in different states or a parent has recently moved into or out of the state. Before an Illinois judge can issue a custody order, the Illinois court must have jurisdiction (legal right to make binding decisions) over your case.
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.
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 are the only ones that can hear a custody case for that child.
Illinois has jurisdiction to hear a child custody case if:
The UCCJEA and associated rules are complex. If you’re unsure whether your child custody case should be heard in Illinois or in another state, you should consult with an experienced attorney. See 750 Ill. Comp. Stat. § 36/201 (2020).
Illinois custody laws 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 the right to make major medical decisions on the child’s behalf. “
Physical custody” refers to where the child actually lives. A court can award joint physical and legal custody to both parents or sole physical and/or legal custody to just one parent. A judge will make physical and legal custody decisions based on the child’s best interests.
Unlike some states, Illinois custody laws don't presume that joint custody is automatically in the child's best interests. Judges will try to give both parents maximum involvement in the child’s life. However, if one parent has committed domestic violence a judge will likely grant the victim parent sole physical and/or legal custody.
Even when parents agree on custody, a judge must ultimately determine what custody arrangement 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:
It’s usually in the best interest of siblings to keep them together, in the same household. There are exceptions where a child’s special needs or family dynamics requires separation. In these cases, a judge may split children between the parents.
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, Illinois custody laws expressly state that the court should not consider a parent's marital conduct (such as adultery or reckless spending) unless it affects that parent's relationship with the child.
A parent's fitness is one element to be considered in determining what is in a child's best interest. However, a parent’s gender has no bearing on custody orders. Both parents have equal rights to custody of their children.
A parent with a mental illness, psychological problem, or substance abuse struggle is necessarily unfit to serve as the primary custodial parent. A court will evaluate mental health issues or substance abuse struggles along with all other relevant factors to determine a child’s best interests. For example, if a parent has a significant, long-standing, history of bizarre behavior that endangers the child, a court may appropriately decide that the children's best interests are served by granting custody to the other parent.
Illinois courts will weigh a parent’s substance abuse or mental health problem carefully as it pertains to that parent’s ability to parent. Courts are aware that treatment can help a parent overcome problems that plague a parent during the marriage.
A parent’s willingness to seek treatment and forward progress doesn’t mean that parent will receive custody. Ultimately, a judge must determine what impact the parent's problems will have on the child.
While a child may express a preference in a custody case, the child's wishes are not the last word on the matter. An older child’s preference will be given considerable weight when it’s based on sound reasoning, such as a desire to remain with friends, to continue attending the same school, and/or to remain in the same environment. Ultimately, a child’s best interests will determine the outcome of a custody case.
As a practical matter, courts are unlikely to disrupt an acceptable status quo in favor of an unknown alternative. For example, if a child appears to be well-adjusted and the custody situation is working, a court will be more inclined to leave the current custody situation in place. A parent’s ability to provide stability and continuity are factors a court will look at when weighing a child’s best interests.
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 a child is not thriving.
One parent’s new relationship or remarriage generally won’t impact custody unless that person poses a danger to the child or the child’s stability. Specifically, a judge will assess whether the remarriage impacts the child's well-being. For example, if one parent intends to marry or live with a registered sex offender, that parent will have a difficult time obtaining custody.
A parent (even a custodial parent) can’t remove a child 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 serves the child’s best interests. A court must consider the following factors in determining whether a proposed move to another state is in the best interests of the child:
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’s best interests.
A judge will want to address housing arrangements, job opportunities, neighborhood and school quality, available activities for the child, and a well-considered plan to keep the child in touch with the left-behind parent. 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.
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.
A permanent relocation is different than a vacation. Parents are free to take the child out of state on a temporary vacation as long as the court order allows it and the traveling parent provides the other parent 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.
There are three situations when a parent can ask a court to modify a custody order:
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.
A parent’s indulgence in "moral indiscretions" aren’t enough to justify a change of custody if the children are leading a normal, stable life with that parent. However, if the actions of a custodial parent seriously endanger the mental or emotional health of the child, a change in custody may be necessary. Illinois law forbids courts from considering a parent's conduct in awarding custody unless that conduct affects the parent's relationship with the child.
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.
A custodial parent’s death is a significant change in circumstances that requires custody modification. Upon the death of the custodial parent, the traditional rule is that the other parent gains legal custody of the child.
Likewise, a parent’s incarceration is also a material change of circumstances giving rise to a custody modification. An incarcerated parent may make emergency arrangements for the child's immediate care, but he or she cannot dictate that a third party continue to act as custodian for the child for the duration of his or her incarceration. A judge will formulate a new custody and visitation plan that serves the child’s best interests.