llinois custody laws provide a framework for determining the allocation of parental responsibilities. These responsibilities are broken into two groups: 1) Decision-making responsibilities (legal custody) and; 2) Parenting time (visitation).
- When parents agree as to how parental responsibilities ought to be shared, they submit a joint proposed parenting plan to the court for approval.
- When parents do not agree they are required to attend mediation. The goal here is for a neutral party – a certified mediator – to help the parents agree on the parenting plan for the child or children.
- If mediation fails to achieve an agreement between the parents, then a judge will determine the allocation of parental responsibilities based on the child’s best interests.
Regardless of the specifics of your relationship with your co-parent, it’s a good idea to work with an attorney. A qualified child custody lawyer can help guide you through the process and give you advice based on your goals and the specifics of your circumstances.
Below, we address some of the most frequently asked questions about Illinois custody laws so that you can better understand the basics before moving forward with your child custody case.
Illinois Child Custody FAQ
In Illinois, Who Has Custody of a Child if There Is No Court Order?
In Illinois, if there is no court order regarding child custody, it is generally assumed that both parents have equal rights to the child. This means that both parents have a legal right to make decisions about the child’s life and to have physical custody of the child.
If there is no court order, parents need to create a parenting plan that outlines the child’s custody schedule and each parent’s responsibilities to the child. However, if the parents cannot agree, either parent can file a petition with the court so a judge can establish custody and visitation rights.
How Is Child Custody Determined if the Parents Are Getting a Divorce?
If a child’s parents are going through a divorce, child custody will be determined during the divorce proceedings. When making the determination of who will have custody, the court will give the highest priority to what arrangement is in the best interests of the child. However, judges also take other factors into consideration, including the following:
- The wishes of each parent;
- The wishes of the child if the court determines they are mature enough;
- The amount of custody time each parent had before the divorce;
- Any prior arrangements between the parents;
- The prior course of conduct of both parties;
- The child’s needs;
- The distance between the parents’ homes;
- The child’s adjustment to home, school, and community;
- The mental and physical health of the child and the parents;
- Each parent’s ability to cooperate;
- The child’s interactions with the parents, siblings, and other important family members; and
- Any other factor the court decides is relevant.
As you can see, the court considers many different factors when determining who will have custody of the child.
How Is Child Custody Determined if the Parents Were Never Married?
Illinois custody laws for unmarried parents give the mother the right to make all decisions regarding the child’s upbringing and have sole physical custody until the father establishes paternity. If the father wants custody or parenting time, he must petition the court or establish paternity first.
Mothers can establish the parent-child relationship by showing evidence that they gave birth to the child. Though, a mother can also provide evidence of a valid surrogacy arrangement or proof of adoption to show that they are the mother of the child.
Fathers, on the other hand, must file a paternity action. The purpose of a paternity action is to establish that the claimant is the biological father of the child and to determine the rights and responsibilities of the father regarding the child. To establish paternity, a father can provide a Voluntary Acknowledgement of Paternity, which is a form that both parents sign at the hospital when the child is born. This form acknowledges the father to be the biological father of the child. The father can also request genetic testing. A genetic test is a DNA test that can positively determine whether or not the claimant is the biological father of the child.
Once the child-parent relationship has been established, the unmarried parent can petition for custody just as the married parents of a child would.
If it Goes to Court, How Is Child Custody Determined?
In Illinois, child custody laws prioritize the best interests of the child when determining parental decision-making authority and visitation. The court will consider a range of factors, including the wishes of the child, taking into account the child’s maturity and ability to express independent and reasoned preferences.
The specific factors the court will consider include:
- The wishes of the parents,
- The wishes of the child,
- The mental and physical health of all the parties involved,
- Any prior arrangements between the parents, and
- The child’s adjustment to home, school, and community.
For a more exhaustive list of the factors, you can look at the Illinois Marriage and Dissolution of Marriage Act, found in Illinois Compiled Statutes Section 602.7.
What Custody Rights Do Mothers Have?
In Illinois, mothers have the same legal custody rights as fathers. There is no legal presumption that favors mothers over fathers in child custody cases. A mother can seek either joint or sole legal and physical custody of their child. However, they can still seek visitation rights if they are not awarded custody.
What Custody Rights Do Fathers Have?
As mentioned above, both mothers and fathers have the same legal custody rights. There is no legal presumption that will favor a mother over the father or vice versa in a child custody dispute.
If the father and mother are unmarried, the father may need to file a paternity action to establish the parent-child relationship before filing for custody. Once he shows that relationship, the father can seek custody.
What Does Parenting Time Mean in Illinois?
In Illinois, there are two types of custody: legal custody and physical custody. Legal custody is custody over important decisions about the child’s upbringing, while physical custody is actual physical custody rights over the child.
Parenting time usually refers to a parent’s physical custody of a child, but it can also refer to a parent’s visitation rights. Parenting time is an important aspect of custody decisions in Illinois because parents typically cherish having time to live with and interact with their children meaningfully. When deciding parenting time, the court will consider the child’s best interests.
What Are the Most Common Parenting Time Guidelines?
Illinois’s most common parenting time guidelines are based on the “Model Parenting Time Schedule,” developed by the Illinois Family Law Study Committee. The schedule provides a commonly implemented framework for parenting time, but the court can deviate from the framework if it is in the child’s best interest to do so.
A typical parenting time schedule of the non-custodial parent usually includes the following:
- Time with the children every other weekend,
- Time with the children one evening per week, and
- Time on certain holidays and school breaks.
However, courts are also eager to award more traditional 50/50 custody schedules when the situation is right, and such a split serves the child’s best interests.
What Age Can a Child Choose Which Parent to Live with in Illinois?
There is no specific age at which the court will allow a child to choose which parent to live with. But because the court is required to consider the child’s best interests in every child custody determination, the court can consider the child’s wishes.
In general, the older the child is, the more likely the judge is to consider the child’s wishes. However, even if the child is old enough and mature enough to express their wishes, it is unlikely that the court will find that fact to be the sole determining factor.
What Does it Mean to Be the Primary Residential Parent in Illinois?
In Illinois, the term “primary residential parent” refers to the parent who has physical custody of the child (or children) most of the time. This parent is typically responsible for providing the child’s primary residence and for making the day-to-day decisions about the child’s upbringing.
In addition, the primary residential parent may have advantages in terms of decision-making authority and the allocation of parenting time. For instance, the child’s primary residential parent may make the decisions regarding the child’s healthcare, education, and religious upbringing. However, this decision-making authority is usually subject to the other parent’s input.