Illinois Child Custody Laws

When married couples divorce, Illinois law helps parents divide legal custody and physical custody (parental responsibilities and parenting time). For unmarried parents, the mother has sole custody until the father establishes paternity. The goal of the Illinois child custody laws is to determine the best interest of the child.

Determining Custody | How the Court Determines Custody | Laws for Unmarried Parents | Parenting Plan | Modifying Custody | ConsiderationsFrequently Asked Questions

Determining Custody in Illinois

This article references and describes Illinois laws and statutes that affect child custody cases. In the custody process, parents first try to split custody. When they cannot, they attend court-ordered mediation. If disagreements are still present, then the court makes its decision.

The court differentiates between legal custody and physical custody. Legal custody is the decision-making authority over major decisions in a child’s life. Physical custody is who actually has the child day-to-day.

1.) Parent’s Splitting Custody

First, a separating couple tries to create a custody arrangement on their own. This process can also include each party’s attorney. When parents agree, they create a joint parenting plan that outlines each parent’s legal custody and physical custody over the child.

2.) Court-Ordered Mediation

Parents attend court-ordered mediation when they can't agree on a custody arrangement. The certified mediator is a neutral third-party attorney, social worker, psychologist, or therapist. These sessions are non-binding and confidential. The mediator helps parents communicate with each other and come to an agreement.

3.) The Court’s Decision

If mediation doesn’t solve the disagreements, then the case goes back to the court for a judge to decide. Illinois courts make their decisions based on relevant laws, statutes, and case law. The exact stages vary depending on the situation. A few possible stages include a GAL's investigation, a home study, and testimonials. To effectively argue your case, you need to know how to handle each step.

The laws considered in these stages are dense, full of jargon, and can contradict each other. That’s why it’s important to have an attorney who specifically practices family law like at Sterling Hughes.

In every step of the process, each party works to convince court officials to rule in their favor. And, each court official has different arguments and points that sway them. Experienced attorneys like Sterling’s can use this to their advantage. All arguments on child custody are rooted in the child's best interest.

How the Court Determines Custody

When deciding legal and physical custody, the judge rules based on the child’s best interest. The Illinois statutes separately outline how to award legal custody and physical custody. The factors are similar in a lot of ways but vary around aspects that are specific to each custody type.

Legal Custody (Parental Responsibilities)

The court’s goal is to decide who gets legal custody of the child based on what is in the child’s best interest. To determine this, the court considers the following factors:

  1. The needs of the child;
  2. The wishes of the child;
  3. The wishes of each parent;
  4. Any previous agreements about decision-making;
  5. Each parent’s past participation in making significant decisions;
  6. The mental and physical health of the parties involved;
  7. The child’s adjustment to their new circumstances: school, home, community, etc;
  8. The ability of both parents to cooperate and make decisions for their child;
  9. The ability of a parent to support a positive relationship with the other parent;
  10. The distance between the parents’ homes and its effect on their ability to cooperate;
  11. Whether a parent endangered the child’s health mentally, morally, or physically;
  12. Any acts or threats of physical violence from a parent-directed at the child;
  13. Any abuse of the child or another member of the child’s household;
  14. Whether one of the parents is a sex offender and if so, the nature of the offense and any resulting treatment;
  15. Any other factor determined to be relevant by the court.[1]

Physical Custody (Parenting Time)

Below are the factors used to determine the child’s best interest regarding a child's physical custody in Illinois:

  1. The child’s needs;
  2. The wishes of the child;
  3. The wishes of each parent seeking parenting time;
  4. Any previous agreements about the child’s caretaking;
  5. The amount of time each parent spent taking care of the child in the last two years ;
  6. The mental and physical capacities of the child and parents;
  7. The child’s adjustment to their home, school, and community;
  8. The child’s relationships with impactful individuals, such as parents, siblings, etc.;
  9. The ability of each parent to foster and encourage a relationship with the other parent;
  10. The distance and cost of transportation between the parent’s homes;
  11. The terms of either parent’s military family-care plan;
  12. The ability of the parent to prioritize the child’s needs;
  13. Whether a restriction on parenting time is necessary;
  14. If there’s a history of or threats of physical violence towards the child or any other household member;
  15. The presence of abuse toward the child or any other household member;
  16. If either parent is a convicted sex offender and if so, the nature of the offense as well as any treatment completed by the offender;
  17. Any other relevant factor as determined by the court.[2]

Custody Laws for Unmarried Parents (Establishing Custody)

Until paternity is established, the mother has sole custody of the child. Sole custody means the mother has full legal and physical custody of the child. A father needs to establish paternity through a court-approved method to get his rights to the child.

If paternity is established, parents have equal rights to the child. Illinois assumes both parties are fit to parent the child and should have parenting time. This means both parties will get parenting time unless to do so would not be in the best interest of the child.[3]

Can a Judge Order Supervised Visitation or No Visitation?

If a judge determines someone is an unfit parent, the judge can decide that they get no physical custody. If the parent is not entirely unfit, the judge can order supervised visits. This is where the person in question only gets to see the child when a predetermined person is also there. This person could be a social worker, a trusted family member, or some other agreed-upon person.

Do I Need a Parenting Plan?

Yes, within 120 days after filing or being served a petition for child custody, both parties must file a parenting plan with the court. Parties can file a parenting plan together or separately, depending on their situation. The parenting plan is the final result of a child custody dispute.[4]

Right of First Refusal

When both parents have parenting time, the court has the option to award the right of first refusal. The right of first refusal gives parents the option to babysit the child on the other parent's days. For example, if Parent A is going to the movies on a night they have the child, they have to offer to give the child to Parent B for the night before they hire a babysitter.

The right of first refusal is not given in every case. This right is given to a party if it is in the child’s best interest. There can also be stipulations set on this right, such as transportation requirements or a notification timeline.[5]

Modifying Legal Custody and Physical Custody

When circumstances change, parents can modify custody. Depending on the time frame and the reason for the change, the court may not even allow the motion to modify custody to get to court.

There are different qualifications that have to be met to change legal custody compared to physical custody. For legal custody, the court will not change orders within two years of the original order. They will only change orders if a parent shows the current environment is harmful to the child’s “mental, moral, or physical health.” To change physical custody, a parent needs to prove there was a major change in circumstances.

How Do Illinois Custody Laws Deal With Moving Parents?

Under Illinois law, a parent’s relocation is a substantial change that can lead to a change in custody. The moving parent must let the other parent know and must file a notice with the clerk of courts. This notice must come at least 60 days before the parent intends to move.

If the moving parent sent the notice to the courts and got the okay from the non-moving parent, they are allowed to move. If the non-moving parent will not sign the notice, then the moving parent has to file a petition with the court.[6]

Considerations

Do Courts Favor the Mother Over the Father?

The courts do not favor either parent based on their gender. Rather, the courts decide the legal and physical custody of the child based on what is in the child’s best interest. For example, if it is in the best interest of the child for the father to have sole custody, then he will.

Can Children Choose Who To Live With?

No, there is no official age that a child can choose who they live with. However, the court will take into account what the child wants no matter how old they are. The older or more mature a child is, the more weight their opinion will have.

Can Grandparents Apply for Child Custody?

Often called grandparent’s rights, grandparents can petition the court for visitation. They can only do this in specific circumstances such as if the parents unreasonably deny the grandparents visitation. The burden of proof falls on the grandparents which means they have to prove that the denial is unreasonable.[7]

Will My Child Need to Appear in Court?

Children very rarely appear in court. Instead, a guardian ad litem (GAL) is appointed to represent the child and recommend what is best for them. If a child does need to testify in court, they can do so in the judge’s chambers rather than in open court.

Frequently Asked Questions

How is child custody determined in Illinois?

First, parents have the option to decide child custody between themselves or with the help of a mediator. If needed, the courts decide custody based on what is in the child’s best interest. The factors they consider when finding the child’s best interest are listed above.

What rights do fathers have in Illinois?

Before paternity is established, mothers have sole custody. At this time, the only right a father has is to pursue paternity. Once paternity is established, fathers have the same rights as mothers.

What is considered an unfit parent in Illinois?

The court decides a parent is unfit in extreme circumstances such as abuse, incarceration, and neglect. The court prefers for both parents to see the child unless it would harm the child emotionally, mentally, or physically to do so.

At what age can a child choose which parent to live with in Illinois?

The court factors in a child’s preference no matter their age. There is no age that instantly allows a child to choose where they live. Instead, the court gives a child’s preference more weight as they become mature and can express their own preferences.

What makes a mother unfit in the eyes of the court?

A mother is unfit in the same instances as a father. Those instances include abandonment, abuse, disregard for the child, and other severe circumstances.

Who has custody of a child if there is no court order in Illinois?

If parents are married and there is no court order, then both parents have custody of the child. If parents are unmarried, then the mother has sole custody until paternity is proven.


References: 1. 750 ILCS 5/602.5 (c). Illinois Marriage and Dissolution of Marriage Act. | 2. 750 ILCS 5/602.7 (b). | 3. 750 ILCS 5/602.7 (a-b). | 4. 750 ILCS 5/602.10 (a-d). | 5. 750 ILCS 5/602.3 (a-c). | 6. 750 ILCS 5/609.2. | 7. 750 ILCS 5/602.9 (b) (3-5).


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