Illinois Custody Laws What You Should Know

If you want a divorce in Illinois and have children, you might wonder how the family court decides custody. This article provides details about Illinois child custody laws, but if you have questions about your case, speak to our Schaumburg child custody lawyers at Law Office of Fedor Kozlov, P.C., today.

How To Establish Child Custody In Illinois

Parents getting divorced in Illinois with children must obtain a custody order as part of the process. The Illinois court has jurisdiction to hear the child custody case in these situations:

  • If they are under six months old, the child has resided in Illinois for the last 180 days or since birth.
  • The child resides out of state but lived in Illinois within the previous 180 days, and one parent still lives in Illinois.
  • The child does not have another home state, or their home state did not exercise jurisdiction over the child custody case. Also, the child and at least one parent have connections to Illinois, and there is evidence in Illinois about the child’s protection, care, training, and personal relationships.

The rules regarding whether the child custody case can be heard in Illinois are complicated. So, if you have questions about which court has jurisdiction, you should refer to your Schaumburg child custody lawyer.

What Are Legal And Physical Custody?

Child custody laws in Illinois denote the difference between legal and physical custody. Legal custody means the parent has the right to make critical decisions about the child’s upbringing, such as where he will go to school, religious training, and right to make medical decisions for the child.

Physical custody means where the child lives. The court can order joint or shared legal custody. Or order sole physical custody to one parent. Illinois family court judges make their decisions based on the child’s best interests.

The laws in Illinois do not presume that joint child custody is always in the child’s best interests. The judge will typically attempt to give both parents as much involvement in the child’s life as possible. However, if one parent has engaged in domestic violence, the judge will probably give the other parent sole legal and/or physical custody.

How A Child’s Best Interests Is Determined

Even if you and your ex-spouse fully agree on child custody, the judge must decide what arrangement is in your child’s best interests. After all factors are considered, the custody decision is not based on who is a better or worse parent but on the child’s best interests. Those factors include:

  • What each parent wants
  • What the child wants
  • The relationship the child has with each parent and siblings
  • How well the child adjusts to their home, community, and school
  • The mental and physical health of the child and the parents
  • Whether there was domestic violence or threat of violence by either parent
  • The ability and willingness of each parent to encourage a good relationship between the child and the other parent
  • Whether either parent is a sex offender

Courts usually assume that keeping siblings together in the same home is in the children’s best interests. However, there are limited exceptions, such as if the child has special needs, or if the family dynamics necessitate the children being separated.

Parental Fitness

The parent’s fitness is a relevant factor in Illinois child custody decisions. But the parent’s gender is irrelevant to the court; both parents in Illinois have the same right to child custody.

Also, a parent who is mentally ill or has a substance abuse issue is not always unfit to be the custodial parent. The family court will review any mental health issues or substance abuse problems, as well as other key factors in determining what is in the child’s best interests. For instance, if the father has a history of mental health problems that endanger the child’s safety, the court could decide that the child’s best interest is to give the other parent custody.

The courts also look carefully at any drug or alcohol problem either parent has. Family courts in Illinois understand that treatment programs can help parents deal with substance abuse issues during the marriage. However, the parent’s willingness to get substance abuse treatment does not necessarily mean they will get custody. The judge has to decide how much the parent’s substance abuse issues will affect the child’s well-being.

Parental Relocation

A common issue in Illinois child custody cases is when one parent wants to leave the area or state, also called relocation. Before 2016, the parent with primary custody could only leave the state if they got permission from the family court. The court would decide if the move was in the child’s best interest and would consider myriad factors, including:

  • If the move would enhance the quality of life for the child and parent
  • If the goal of the move was to make it difficult for the other parent to see the child
  • Whether the parent that was moving was doing so to remarry
  • Whether the parent that was moving has better job options elsewhere
  • Whether the move would still allow a reasonable visitation schedule

Today if one of the parents wants to move the child to another area, they must notify the other parent, stating their intentions. For the written notice to follow the law, it must include these parts:

  • The date when the parent wants to move
  • What the new address will be
  • If it is a temporary move, the length of time the parent wants to live there
  • Must be given within 60 days of the proposed move, in most cases

If the other parent agrees, they must sign the notice, and the moving parent files the document with the family court, and the move is authorized. But if the other parent objects to the move, the moving parent must file a court petition seeking permission to relocate. The updated law means parents do not need court approval for a move as often as before.

Illinois Child Custody Frequently Asked Questions

Are you in the midst of a child custody dispute? Below are common questions about Illinois child custody cases:

Who Gets Custody If There Is Not A Court Order?

If there is no court order in Illinois for child custody, parents typically have equal rights to the children. So, both of you have the right to make critical decisions about the child’s life and to have custody. When no court order exists, you need to devise a parenting plan with your ex that details the custody schedule and who has which responsibilities. If you cannot agree, either party can file a petition in family court so the judge can iron out visitation and custody matters.

What About Child Custody If We Were Not Married?

Child custody laws in the state for unmarried parents give the mother the legal right to make significant decisions about the child. She also gets sole physical custody unless the father proves paternity. If you are the father and want child custody or time with your child, you must verify paternity with a paternity action.

What Are Typical Parenting Time Guidelines In Illinois?

The most common guideline for establishing parenting time is based on a schedule created by the Illinois Family Law Study Committee. This schedule has a framework for parenting time, but the family court may deviate from the plan if it is in the child’s best interest. A common parenting time format for the parent who does not have primary custody is:

  • Time with the child on alternating weekends
  • Time with the child one night per week
  • Time with the child on some school breaks and holidays

However, the family court also will consider a 50/50 custody schedule when it fits the situation and the needs of the child. Also, the court may prefer this outcome if spending equal time with each parent is in the child’s best interest.

When Can A Child Choose Which Parent To Live With?

There is no exact age when the family court allows the child to make this choice. However, the court must consider what is in the best interests of the child, so it can consider what the child prefers. Generally, the older the child, the court is more likely to consider what the child wants. However, even when the child is old enough, the court will not make it the only determining factor.

How Does Remarriage Affect Child Custody?

Your new relationship or marriage does not usually affect the child custody decision unless your partner is a danger to the child. Then, the judge will consider whether the new spouse or partner harms the child’s well-being. For instance, if you decide to marry someone with a severe criminal record, you could have issues getting custody of your children. But in most cases, the new spouse does not affect an Illinois child custody decision.

Contact Our Schaumburg Child Custody Lawyers Today

Child custody issues are some of the most challenging in an Illinois divorce, and sorting through them without legal assistance is difficult. Please contact our Schaumburg child custody lawyers at Law Office of Fedor Kozlov, P.C., today at (847) 241-1299 for help.

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