The question of “Who gets custody of the kids?” is one of the most difficult decisions for parents and their children when parents separate. Custody and visitation (also known as parenting time) are the legal terms for court decisions about who will have the authority and responsibility to make the major decisions related to the child, and how the child will spend his/her time between parents (or others). Custody and visitation are never considered to be final. As children grow and situations change, parents can come back to court to request changes.
In Illinois, custody is the decision-making power of the parties. This includes major decisions related to health care, education, discipline, religion, and other significant matters concerning the child’s welfare. For the Court, determination of custody of a child is based on the best interest of the child. This section is designed to give you general information on how courts decide custody and visitation rights in Illinois.
Types of Illinois Custody:
Sole Custody – Sole custody is when only one of the parents has the legal authority to make major decisions in the child’s life.
Joint Custody – Joint custody means that both parties will share the responsibility of having legal authority to make the major decisions in the child’s life.
The most important factor to joint custody is the ability of the parents to talk about and reach joint decisions that affect the child’s welfare. If you are constantly fighting over what religion or what school, the court may not accept your agreement to share the decision-making authority.
Joint custody does not necessarily include equal time with the child, as sole custody does not necessarily mean that the non-custodial parent will have less time with the child. Parenting time (visitation) can be the same for the non-custodial parent for either type of custody. In Illinois, agreements called “Parenting Agreements” (also called “Parenting Plans”) can be entered into that will outline which parent is the residential parent (where the child will reside for such purposes as school district, etc.). The Agreement may include such topics as physical custody, visitation, health care, education, holidays, religious upbringing, etc. A judge will still decide whether or not to approve an Agreement based on the child’s best interest.
Parenting Agreement (Plan) – This type of agreement should be used when only one parent will have sole custody of the child, such as if one parent is not suitable enough to handle the responsibility of being part of or making major decisions, or the parents are just not able to agree or cooperate enough to share the major decision-making responsibilities. Sole custody does not mean that the non-custodial parent will not have any rights to the child. This form of Parenting Agreement designates the non-custodial parent’s rights, responsibilities, and visitation privileges.
Joint Parenting Agreement (Plan) – This type of agreement should be used when the parents will have joint custody. Since the parents will be cooperating in making all of the major decisions regarding the child together, the Joint Parenting Agreement will outline the agreement of the parties as to how the rights and responsibilities will be divided. This does not necessarily mean that the parties will have equal rights and responsibilities, or even equal time with the child, but that the parents agree on how they have decided to share such issues.
In Illinois, determination of custody of a child is based on the best interest of the child. Section 602 of the Illinois Marriage and Dissolution of Marriage Act includes the following criteria to be considered for custody:
- The wishes of the child’s parent or parents as to custody;
- The wishes of the child as to a custodian (depends on child’s age and maturity);
- The interaction of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his or her home, school, and community;
- The mental and physical health of all individuals involved;
- The physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
- The occurrence of ongoing or repeated abuse whether directed against the child or directed against another person;
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- Whether one of the parents is a sex offender; and
- The terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.
Additionally, the sincerity of the parties involved is important. This list is not meant to be complete and the court will hear anything that they believe to be relevant.
Parenting Time (Visitation)
Parenting time is the amount of time a parent is entitled to physically spend with the child. A non-custodial parent is entitled to time spent in-person with the child. Generally, reasonable visitation includes usual visitation (such as the general or routine schedule), holidays, days off from school, and vacation time. Parenting Agreements outline the time that each parent will spend with the child. There are circumstances where the court will limit or restrict a parent’s time with the child, such as in ordering supervised visitation for the non-custodial parent. As with custody and decision-making, the court will consider the best interests of the child in determining parenting time or visitation.
Custody Arrangements in an Illinois Divorce (Dissolution)
In Illinois, initial child custody can only be decided if Illinois has jurisdiction over the children. This jurisdiction, referred to as “home state” jurisdiction, is when either the children have lived in Illinois for the past six months, or the children live in another state, but lived in Illinois within the past six months and one of the parents or guardians still live in Illinois.
As explained in the section titled “Illinois Child Custody and Visitation (Parenting Time)”, custody of a child can be either joint or sole. Sole custody is when only one of the parents has the legal authority to make major decisions in the child’s life. Joint custody means that both parents will share the responsibility of having legal authority to make the major decisions in the child’s life together. This does not necessarily mean how much time either parent will have with the child. The court must consider the best interests of the child for custody to be determined.
Do the parents have to attend a parenting class?
Illinois requires that divorcing parents, or any parents involved in a legal action related to custody or visitation, attend a court-authorized parenting education program so that the parents are better able to understand how their separation and divorce may be affecting their children. It also helps parents learn how to more effectively deal with issues that may come up between the spouse (or partner) during the separation or divorce. Each county courthouse will have a listing of court-approved parenting classes available, as well as more information as to when the class must be completed during the process.
What if we agree about custody and visitation?
If you and the other parent have already come to a fair agreement on the custody and visitation issue, a Joint Parenting Agreement can be created and signed by both parents. The Joint Parenting Agreement will outline the agreement of the parties as to how rights and responsibilities will be divided. This does not necessarily mean that the parties will have equal rights and responsibilities, or even equal time with the child, but that the parents agree on how they have decided to share such issues. The Agreement may include such topics as physical custody, visitation, health care, education, holidays, and religious upbringing, etc. Even though the parents have an agreement, a judge will still decide whether or not to approve an Agreement based on the child’s best interest.
If you choose to go this route, you and the other parent should be as specific as you can to avoid future conflicts. You should ask yourself, how do we want to share the decision-making responsibilities? Which holiday does the child spend with you and with the other parent? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won’t be there on time? How much notice should you be given if a parent is planning a vacation? How far away may the other parent move? What you might think you can figure out as you go along could actually blow up into a full scale disagreement later. The Agreement should state everything that you have agreed upon. You should not rely on any oral promises. If you both agreed on it, write it down (no matter how trivial it may seem now).
If the parents are unable to come to an agreement or cannot produce an agreed Joint Parenting Agreement, the court can enter, as the court deems appropriate, either a Joint Parenting Agreement or may award sole custody, taking into consideration all elements of the best interests of the child.