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The Illinois Approach to Child Custody

When parents don't share a family relationship but do share children, state child custody law governs how the kids will be cared for until adulthood. In Illinois, child custody laws apply most often when a married couple divorces, but also when a civil union is dissolved or unmarried parents seek parental rights.

Illinois child custody law has some major underlying principles. One is that the "best interests" of the child are always paramount. Another is that generally a child is better off if both parents can be involved in his or her life throughout childhood and adolescence.

Child custody has two important concepts:

  • Physical versus legal custody: These concepts concern the types of decisions being made for a child.
  • Joint versus sole custody: This answers the question whether one or both parents have the power to make decisions on behalf of a child.

Physical custody determines with which parent a child lives. Legal custody answers the question which parent has the power to make other important decisions concerning the child like issues of religion, medical care and education.

Either physical or legal custody decisions can be jointly held by both parents together or solely held by just one parent.

Joint physical custody is a living arrangement where a child divides residential time between the homes of each parent. Often one parent will still be designated the primary residential parent, especially during the school week.

Sole physical custody means that the child lives only with one parent, called the custodial parent. Usually though a visitation or parenting time schedule sets out meaningful time for the child to spend with the noncustodial parent. Visitation is more

Joint legal custody allows the parents to make major life decisions (other than with whom the child will live) together. Not all couples are able to work together for the good of their children and sometimes conflict resolution or negotiation techniques are written right into a joint parenting agreement, the divorce decree or custody order. The court may not allow joint custody if the parents difficulty getting along is a true impediment to important decision making for the children.

Who Decides

Bluntly, the parents can negotiate a child custody settlement agreement for the court to approve, but if they cannot, the state court judge in the divorce or other similar legal proceeding will have to decide for them. It is almost always preferable for the parties to hammer out an agreement with some compromise on each side than for a stranger (the judge) to arrange the family's future living arrangements. In that latter situation, neither parent may be happy with the judge's decision.

If the matter is submitted to the court for decision, a full-blown trial may be necessary with witness testimony and other relevant evidence. The judge may order neutral experts such as social workers, guardians ad litem or mental health professionals to evaluate the best interests of the children. Trial can be very expensive for the parties, but sometimes despite everyone's best efforts child custody decisions end up before the judge.

Best Interests

Illinois requires that the judge use the best interest of the child as the paramount concern in a child custody determination. The language of the statute is strong and clear; in discerning the child's best interests, the judge "shall consider all relevant factors including" 10 that are specifically laid out.

These factors include parental and child preferences, the quality of the parent-child relationship, significant relationships between the child and others like siblings, mental and physical health of everyone, potential violence or abuse, the child's "adjustment to his home, school and community," parental ability to foster a good relationship between the child and other parent, sex-offender status and any military family-care plan.

This article only introduces the basic concepts important in Illinois child custody law, which is complex and evolving. Every family situation is different and any parent facing legal issues concerning his or her children should speak with an experienced family law attorney for thorough advice and guidance.

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