Illinois Custody Laws – An Overview

In 2018 Illinois custody laws changed. Custody and visitation were renamed to parental responsibilities and parenting time. Moving forward Illinois custody laws regarding unmarried parents, moving out of state, child visitation and changing child custody is regulated under 750 ILCS 5.

Laws for Unmarried Parents | Laws for Moving Parents | Parental Responsibilities (Legal Custody) | Parenting Time (Visitation) | Changing Child Custody | Common Questions Answered

Illinois Custody Laws for Unmarried Parents

Whether you are married or not, Illinois custody laws state you have a right to see your child. That said, the road to establishing parental responsibilities and parenting time is a little less straightforward. If you are the mother, then full legal custody of the child will default to you unless the father proves paternity and seeks the court's help.

As the father, if at the time of the birth you signed a VAP form (Voluntary Acknowledgement of Paternity), this form can prove legal parentage but in practice is only used to initiate child support. Simply by singing a VAP you will not get parenting time and responsibilities by default and will need to petition the court for them. If you did not sign a VAP, you will need to prove paternity in court in order to gain any rights over the child. Until this is done, the mother can legally keep the child from you.

If the mother won't acknowledge the father's paternity, it can be established through genetic testing that is done by court order. It's important to note that if the couple was married at the time of conception, both parents have automatic custodial rights over the child. This is true even if you got divorced before the child was born.

How Illinois Custody Laws Deal with Moving Parents

Yes, but there are rules for how far and where the custodial parent can move without the court's permission. As the custodial parents, you can move without permission as long as it's not a “relocation”. So, if you're moving a few miles to a new house, it wouldn't usually require any sort of legal notice. However, if the custodial parent moves farther away, it may be determined a relocation and need legal notice if it meets the following criteria:

  1. They're moving more than 25 miles from the children's current home (if they live in Cook, DuPage, Kane, Lake, McHenry, or Will County)
  2. They're moving more than 50 miles from the children's current home if they live in any other Illinois county
  3. They're moving out of state that is located more than 25 miles from the children's current home.

This is true in the case of unmarried parents as well. Given the other parent agrees to the move, signs a Notice of Relocation, and it's filed then that's all that's needed. If there is a dispute, you will have to attend a hearing where the court will look various factors including the reasons for the move, the relationship between the parents and the children, educational opportunities in both locations, current parental responsibility arrangements, and more.

Moving a significant distance or out of state without informing the other parent or the court, would be a violation of the parenting agreement and put that person in contempt of court.

How Illinois Courts Determine Parental Responsibilities

In Illinois, the court will take into account 15 different variables when determining parental responsibilities. Unlike many states, Illinois may assign responsibility for one item such as medical decisions to one parent and religious upbringing to the other parent. The courts do prefer parents come to an agreement on all items, but they will delegate responsibilities between parents if a common agreement cannot be found. This is unique as many states are all or none.

To learn more about all the specific factors that are looked at when determining parental responsibilities in Illinois click the button below.

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Determining Parenting Time in Illinois

Parenting time is what most people think of when they think of custody, and refers to who has the child and when. A specific list of factors is considered in Illinois when deciding parenting time. Some of these factors include the child's wishes depending on their age, where each parent lives in relation to the child's current day to day life like school and or daycare, and the capacity of both parents' abilities to properly care for the child.

To review all 17 factors the court will consider when determining parenting time click the link below.

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Modifying Parental Responsibilities and Parenting Time in Illinois

Life can change unexpectedly, and this is why Illinois custody laws allow for modification of parenting responsibilities and parenting time when our circumstances change. To do so, you would need to file a petition to modify a parenting time or parental responsibilities order, but unless there is a truly good reason to do so, a judge typically will not grant it.

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Common Illinois Custody Questions

When Will Parenting Time Be Determined?

Both parents will submit a parenting plan, either separately or together, to the judge who will then approve it at the time of the final divorce judgment. In some cases, you may apply for a temporary order to enforce a parenting schedule until the divorce case is complete.

Is Child Support Paid During Joint Custody?

In short, yes. In Illinois, it's required for both parents to contribute to their children's financial well-being. The exact amounts you will pay is determined by your specific circumstances and income level.

Can Children Choose Who To Live With?

The child's wishes will always be considered, but will never solely be used as the basis for determining parenting time. In the end, the court will determine an arrangement that tries to maximize time for both parents and keep the child's best interests in mind.

Do I Need a Parenting Plan?

In cases where you want joint custody of the children, you will have to submit a parenting plan to the judge. The parenting plan will go over the parenting schedule (where the children are) and the parenting responsibilities. Parental responsibilities to decide to include everything from the child's education, health, religion, extracurricular activities and more. Because the shift in the law does not support a “winner takes all” approach, it's encouraged to divide parental responsibilities between you.

In cases where you don't agree, it's still worth creating a parenting plan anyway so that the judge has the most information as possible.

Can I Refuse to Let the Other Parents See the Children?

In most cases, no. And in all cases, if there is a restriction on parenting time, it is determined by the court and no one else. If you feel the child's wellbeing is in danger because of time spent with the other parent, you can petition the court for a change and present evidence. However, not getting along with your spouse or is not an adequate reason for the court to change the parenting schedule. Additionally, even if the other person falls behind on child support, they will still be legally allowed to be with their kids during their scheduled parenting time. In all cases, the court will weigh everything against the child's best interest.

What if the Other Parent Refuses to Spend Time with the Children?

Parenting time is not a casual suggestion, but a court order and those that refuse to abide by it can face consequences. If any parent is not abiding by the terms of their agreement, try to work it out with them, and if that doesn't work, you can go to the court and have the order enforced. The court is more likely to enforce the current orders of the agreement than modify them in most cases.

Can Grandparents Apply for Child Custody?

When grandparents have custody of a child it was traditionally called “third party custody”. With the new law, allocation of parental responsibilities can be given to a third party, but it's still pretty rare. There are only a few specific circumstances where a judge would consider cutting out the biological parents completely. These include (but are not limited to) the parents being involved in criminal activity or having extreme financial hardship or substance abuse problems. Regardless, any change in parenting away from the biological parents must be done in court and is never assumed.

Who Pays for College If Parents Are Divorced?

There is no explicit formula or calculation that determines who pays for a child's college and how much is paid. The judge can determine this based on our specific circumstances. In most cases, any payments would end when the child turns 23. It also only covers the child getting a bachelor's degree, and only if they maintain a C average. In general, it is best to come to an agreement on your children's college expenses before getting in front of a judge.

Read the Illinois custody law statues on the state code book website.

References: State Code Book Website

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