How Is Child Custody Determined In Illinois?
Child custody can be one of the most challenging parts of a divorce because both parties usually want to be with the kids as much as possible. Illinois laws have changed considerably since 2016, so it is essential to understand those changes when dealing with a child custody dispute. Find out more in this article, then our child custody lawyer in Schaumburg can answer any additional questions.
Updated Child Custody Laws In Illinois
In 2016, lawmakers removed the word ‘custody’ from the Illinois Marriage and Dissolution of Marriage Act (IMDMA). In a child custody matter today, judges assign a certain amount of parental responsibility and parenting time to the parents.
Parenting agreements are often made according to the child’s age, relationship with the parent, special needs, and the parent’s ability to care for the child. The changes in the IMDMA also combined the parents’ incomes when deciding what child support would be. It eliminated the previous percentages used and devised an income-shares approach where child support is determined based on both parties’ combined adjusted net income.
Overview Of Legal And Physical Custody
Illinois law today talks about legal and physical custody. Legal custody gives the parent the right to make critical decisions about raising the child. Physical custody means where the child lives. The court may award shared physical and legal custody to both parties. Or, the judge can award sole physical and legal custody to one parent. The decisions regarding physical and legal custody are always made according to the child’s best interests.
Unlike some states, the laws of Illinois do not presume that joint custody is in the child’s best interests in every case. Judges usually try to give both parents as much involvement as possible in the child’s life. However, if one party has engaged in domestic violence, the judge will probably grant the other parent sole legal and physical custody.
How Is The Child’s Best Interests Determined?
Even if parents agree on child custody matters, the judge must decide what is in the child’s best interests. The focus in the custody decision is not on which parent is better but on the best interests of the child when all relevant factors are considered, including:
- The wishes of each parent
- What the child wants
- The quality of the child’s relationship with each parent
- How well the child adjusts to the home, school, and community
- Each parent’s physical and mental health
- Whether there was physical violence in the home
- The willingness of each parent to encourage a close relationship between the child and the other parent
Courts usually try to keep siblings together in the same home. However, there are exceptions when the unique needs of a child or family dynamics make it necessary to separate the children. In this situation, the judge may split the kids between the parents.
Common Areas Of Disagreement In Child Custody Disputes
Illinois’s most common child custody dispute usually involves parents divorcing and trying to establish a parenting plan for their children. Each party typically wants as much parental responsibility and parenting time as possible, and sometimes the parties cannot agree. If the case must go to court, the judge will decide based on the child’s best interests.
During the child custody dispute, the child may get a limited say on where they want to live if they are mature enough so that the family court gives their opinions weight. Judges sometimes consider a child’s opinion when the child is older. However, they will not make a custody decision if they think the action is not in the child’s best interests.
Decision-Making Areas To Be Decided In Child Custody Case
Four decision-making areas must be determined before the child custody matter is resolved. They are:
- Education: Involves the child in school, specialized services, and tutors
- Healthcare: Deals with critical decisions involving the child’s medical, dental, vision, and mental health needs
- Religion: Determine the religious beliefs the child will be taught, any religious meetings and activities they will attend, and religious groups they will be involved with
- Extracurricular activities: Arts, educational, social, sports, and other activities outside of school
A parent’s fitness is one factor that is considered to determine what is in the child’s best interest. But the parent’s gender has nothing to do with custody decisions; both parents have an equal right to child custody.
Also, a parent who is mentally ill or has a substance abuse problem is not always unfit to be the custodial parent. The court will review any mental health issues or substance abuse problems along with other factors to decide what is in the child’s best interests. For example, if one parent has a history of mentally unstable behavior that endangers the child, the judge may award custody to the other parent.
The courts in Illinois weigh substance abuse and mental health issues when considering the person’s ability to parent. Courts know treatment can often help parents overcome mental health and substance abuse problems.
However, a parent’s willingness to get treatment and make progress does not necessarily mean the parent will get custody. The judge must decide how the parent’s issues impact the child.
A child can choose who has custody, but the child’s wishes are not the only consideration. An older child’s preference will be given more weight if the reasoning makes sense. For instance, a middle school child may want to stay with Mom because he can stay in the same neighborhood with his friends and attend the same school.
Courts Often Prefer The Status Quo
Many Illinois courts are unlikely to change the status quo in the child’s living situation for something unknown. For instance, if the child seems to be living well with the father, the court will be inclined to leave the situation alone. The ability of the parent to provide continuity and stability are essential factors that will be considered when determining the child’s best interests.
Keeping the child stable is often considered best if all other factors appear equal. However, courts do not hesitate to remove a child from an unhealthy or unstable environment.
Another common matter in many child custody cases is when one parent wants to move out of town or out of state. Before the 2016 law changes, the parent with primary custody could only move outside the state if they got the court’s permission. The court would decide if the move was in the child’s best interests. The old law also said that a parent with sole custody would not need to get permission from the court to relocate to another town in Illinois. But the court could impose a reasonable restriction on how far they could move.
Under the current law, relocation is defined as a change of residence from the child’s home in these counties – Cook, DuPage, Kane, Lake, McHenry, or Will – to a new home in Illinois more than 25 miles from their current home. Or it is a change of residence from the current home to one in a county not listed above to a new home in Illinois more than 50 miles from the current home. Or, it is a change of residence from the current home to a home outside Illinois and more than 25 miles from the current home.
A parent who wants to move with their child must provide a written notice to the other party stating their intention to move. For there to be proper written notice, these requirements must be met:
- The letter must state the date when the move will happen
- The letter must provide the new home address
- If the move is temporary, the letter must state how long the move will last
- The letter must be provided to the other parent at least 60 days in advance
Does Remarriage Affect Custody?
A parent’s new relationship or remarriage does not usually affect child custody unless the new person is a danger to the child. The judge will assess if the new relationship affects the child’s well-being. For instance, if one party wants to marry someone with a domestic violence history, that parent would have challenges getting custody.
Can A Child Custody Order Be Modified In Illinois?
Yes. There are several situations when a parent can request a child custody modification:
- When both parties agree to the change
- When the present environment of the child endangers their mental and physical health
- When a minimum of two years have passed since the original custody order was put in place and there has been a change in the parent’s or child’s circumstances
The changed circumstance must be because of facts that did not exist or because the parent did not know when the order was entered. So, a parent cannot just go back to court and review the same custody matters the court considered before. There must be new information and facts to consider.
Contact Our Child Custody Lawyer in Schaumburg Today
One of the most difficult challenges in a divorce is a disagreement over child custody. Our child custody lawyer in Schaumburg at Law Office of Fedor Kozlov can help you resolve the issue, so call (847) 241-1299. Our child custody attorneys will review your situation and provide recommendations so that you can get a child custody agreement that adheres to your wishes.