Whether parents were married or have had a child without being married, the decision to split up and decide how to continue raising the children in the best environment is almost always a challenge. Neither parent involved in this situation wants to lose time with their children but the Illinois family court system will look at a number of different factors to determine what arrangement is most appropriate and what situation will best support the well-being of the children. This is known as the “best interests of the child” standard.
Child Custody Laws in Illinois (Parental Responsibility)
In 2016, Illinois went through a massive rewrite of the Illinois Marriage and Dissolution of Marriage Act (commonly referred to as the ‘IMDMA’). Under Illinois statute, ‘child custody’ and ‘visitation’ have been replaced with ‘allocation of parental responsibilities’ and ‘parenting time.’ If it sounds confusing, just remember this: ‘allocation of parental responsibility’ refers to what we would have called under the old law ‘child custody’ (things like decision making abilities of either parent), and ‘parenting time’ refers to what we would have called ‘visitation’ under the old law (although parenting time technically applies to both parents now). You can read the specific Illinois statute here at 750 ILCS 5/600 et. seq.
Because most states (and countries) have not adopted a similar rewording or rewrite of their own family law statutes, this new rewrite specifies that for certain purposes, a parent or both parents are still to be determined to have ‘sole custody’ / ‘joint custody’ and ‘residential’ or ‘custodial’ parent. The reason for this is so that laws in Illinois can match up with other locations or laws within Illinois even, (such as the Illinois School Code which requires having a ‘custodial parent’ be named), other states that don’t understand what this means (it is ridiculously confusing sounding – most attorneys agree!) or use the new phrase, and even other countries with whom the U.S. has international treaties.
When the family court system in Illinois is presented with a child custody / allocation of parental responsibilities case, it always handles it on an individual basis. Even though all circumstances surrounding a case involving the allocation of parental responsibilities (child custody) and parenting time (visitation) will differ, the judge will always start the evaluation under the assumption that having both parents involved in the children’s upbringing is in their best interest – this is called co-parenting. From here, the judge will explore different parenting time options and decision making authority that will give the best possible chance of the child having a positive upbringing.
Determining the Allocation of Parental Responsibility (Child Custody)
Since having both parents involved in the children’s lives is the ultimate goal, the judge will first evaluate whether or not a shared allocation of parental responsibilities (formerly called joint custody) and parenting time (formerly called visitation) is feasible for the given case. With co-parenting as the initial starting point, the Court will evaluate a number of factors to determine what parenting time schedule works for the child and which parent (or both, in a shared/equal situation) should have the ability to engage in decision making for the child. For the most part, the Illinois family law courts view normal day-to-day decisions as things that each parent can decide for themselves without consulting the other parent. But there is a difference when it comes to what the law calls “significant decision making’ items. The judge will look at some of the following factors:
- Have the parents shown a willingness to co-parent?
- Have the parents already developed their own parenting plan (and is it working)?
- Do the parents plan on living geographically close to one another to make decisions jointly or to share parenting time?
- Do both parents have the ability to effectively communicate with one another?
- Do both parents have the ability to nurture and encourage a positive relationship between the children and the other parent?
- Do either of the parents have any history of abuse that may be cause for concern?
The above factors are just a short list of all the considerations the judge will make when doing the evaluation – this is by no means an exhaustive list of what they will consider.
Specific Factors to Determine the Allocation of Parental Responsibility
If after a complete evaluation of the circumstances, it is determined that joint custody is not possible, the court will then work on determining which parent will be the primary custodial parent. Making this decision is often very taxing on judges and a hard decision for them to make, since it will ultimately have an impact on the children in some way. The judge will take the time to evaluate the characteristics and demeanor of each parent, among many other attributes, in order to determine who will make the very best provider for the children and provide them with the most secure, safe living conditions.
The judge will need to look at a number of different factors in order to determine which decision will be in the best interest of the children involved. He or she will often look at each parent individually and also compare them to one another in areas such as financial stability, child rearing skills, and their characteristics to help them make a final decision. Some of the additional factors considered include, but are in no way limited to, the following:
- The parent’s financial stability
- The parent’s physical ability to care for the children
- The parent’s willingness to invest in the children’s well-being
- The parent’s willingness to invest in the children’s medical care
- The parent’s willingness to invest in the children’s education
- The parent’s ability to make good decisions about the children’s upbringing, including medical, education and social decisions
- The parent’s ability and willingness to follow the custody agreement as it is outlined
Illinois court judges will look at the parent’s conduct as it refers to the children’s well-being – this means, if the parent is participating in questionable conduct that does not involve or affect the children, such as being involved in an adulterous relationship, this conduct will not count against them when the judge makes their custody decision. As mentioned, the best interests of the child is the most important factor to Illinois family court judges, so all other circumstances are often overlooked for this reason.
Child Custody Modification in Illinois
Illinois does allow requests for modification to child custody agreements. If both parents are in agreement with the proposed change, they will still need to submit the change to the court in order to have it approved and for it to become legally binding. If one parent does not agree to the modification, it then falls on the parent making the request to prove why the modification is needed and how the modification will benefit the children who will be affected. Too many disruptions in the children’s schedules can often have a negative impact on their lives, so modifications are not easily granted.
The parent who is making the request for modification must prove the following to the family court judge in order for the modification to be approved and made legally binding:
- A significant change in circumstances has occurred that requires the child custody agreement to be modified
- The modification to the children’s schedule and child custody agreement will benefit the children in some significant way
- The benefits of the modification being requested will outweigh the potential emotional/mental hardships that the children will face
Child Custody and Relocation in Illinois
Relocation requests are handled much in the same way that modification requests are. If both the parents agree to the modification, they will submit the request to the court, it will generally be approved and then made legally binding. Should one parent not want the relocation, the parent requesting the move will carry all of the burden of proof as to why the relocation is necessary. Some of the reasons a parent may request a relocation include securing new employment, securing better employment, better educational opportunities for them or the children, or having a desire to be closer to family members to provide a better support system for the parent and the children.
Some of the factors that an Illinois judge will look at when making a decision about relocation include:
- The ages and genders of the children who are living with the requesting parent
- If any of the children have any learning or physical disabilities that require special attention
- The nature of the relationship between the children and the requesting parent
- The nature of the relationship between the children and the non-requesting parent
- The reason(s) why the relocation is being requested and what proposed benefits the children and/or the parent are hoping to secure
- What, if any, direct benefits the children will receive from the relocation, such as having better educational opportunities, social opportunities, or being closer to family members
- If the children are of a certain age, what their preferences are regarding the relocation (while the judge will take their wishes into consideration, these preferences will not be the sole factor toward making a decision)