Many divorcing parents are able to resolve custody issues, including who will be responsible for the child’s daily routine and when the child will spend time with each of them. When parents can't agree, a court will have to make these decisions for them.
What is Custody and Parental Responsibility?
Legal custody refers to a parent’s right to make decisions relating to the child’s health, education, and general welfare. Common issues that arise with legal custody include the child’s education, major medical procedures, and/or religious upbringing. In 2016, Illinois custody laws changed to allow the court to determine which parent should be responsible for each individual subject that involves the child—called parental responsibilities. For example, a court may order that a father is responsible for all educational choices, and a mother is responsible for a child’s major medical decisions. If the court doesn’t award a parent significant decision-making power, it will award that parent a reasonable parenting time schedule with the child.
Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Parents who are awarded most of the parenting time with the child have primary custody, and courts often refer to them as the “custodial parents.” These parents will make the day-to-day decisions about their child while they are in their care.
In Illinois, children who are at least 14 years old may express an opinion about where they want to live, but a court can (and will) override the child’s preference if the judge determines that the child’s decision is not in his/her best interest.
What is Parenting Time?
If the court awards one parent most of the parental responsibilities, the next step is to determine a parenting time (visitation) schedule for the non-custodial parent and the child. The court will often encourage the parents to work together to draft a schedule that works best for everyone, especially the children. A successful calendar will include a specific schedule for visitation—including holidays, school vacations, and birthdays. It should also contain information on pick-up and drop-off locations, who will be responsible for transporting the children during visitation, and who will pay for transportation costs. Parenting plans should also have a provision that allows each parent to have access to a child’s official records, including medical and educational information.
In some cases, overnight or unsupervised time with a parent may not in the child’s best interest. The court can’t place any restrictions on parenting time unless it finds, by a preponderance of evidence (more than 50%) that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. If a court finds that unsupervised parenting time isn’t best, it may order supervised visits, which will take place in a county or state facility with a professional supervisor present.
How Does the Court Determine Parenting Time?
To determine the best parenting time schedule for the non-custodial parent and child, the court evaluates a specific set of factors, which include:
- the parents’ wishes
- the child’s preference
- the amount of time each parent has participated in the child’s care for the 2 years prior to the court filing
- any prior agreement or course of conduct between the parents relating to a parenting time schedule
- the relationship and interaction between the child and his/her parents and siblings
- the distance between the parents’ residences
- the cost and difficulty of transporting the child
- each parent’s and child’s daily schedules
- both parents’ ability to cooperate with a parenting time schedule
- each parent’s willingness and ability to place the needs of the child ahead of his or her own needs.
How Does the Court Determine Custody?
First, courts prefer and encourage parents to work together to determine their ideal custody arrangements. Parents can use a neutral third-party—called a mediator—to help them reach an agreement on the best custody and visitation arrangement for their family.
If you can’t agree, a court will have to decide custody based on the best interests of the child. Parents will each have an opportunity to show or tell the court why they believe the judge should grant them custody. During the hearing, a judge will consider:
- the child’s needs and wishes
- the parent’s wishes
- the child’s adjustment to his or her home, school, and community
- each parent’s and child’s mental and physical health
- the parents’ ability to cooperate in decision-making
- any prior agreement or course of conduct the parents have followed regarding custody
- the level of each parent’s participation in the past significant decision-making with respect to the child
- the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules and the ability of the parents to cooperate in the arrangement
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
- whether a restriction on decision-making is appropriate
- the physical violence, or threat of physical violence by the child’s parent directed at the child
- any history of child abuse against the child or member of the child’s household, and
- whether one of the parents is a sex offender, and if so, the nature of the offense and treatment of the parent.
The judge will decide custody based on the evidence presented by each parent. Once the court creates a parenting plan, both parents must follow it precisely. If one parent wishes to change the agreement, they will need to ask the court for a hearing.
Modifying Custody and Visitation
Stability is essential for children, but parenting plans are not permanent. Parents can agree to a new plan, or if they can’t agree, they can ask the court to modify the arrangement.
If it has been less than 2 years since the court entered the last order, or if a parent cannot show that the present environment will seriously endanger the child’s health, or significantly impair the child’s emotional development, the court may not modify the parenting plan. The court will consider modification if a parent can prove that there has been a significant change of circumstances in the parents’ or child’s life since the last order.
If the parent can show a change, the court will evaluate the best interest factors listed above to establish a new order. Parents should remember that until the court issues a new order, the previous custody and visitation rules will remain in effect.