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Illinois Child Custody Basics

Legal Custody: Joint or Sole?

Under Illinois child custody law, legal custody is the right to make major decisions affecting the child. It includes such things as where the child will go to school, what religion the child will be raised in, and what type of medical treatment the child will have.

Legal custody may be either joint or sole. Joint legal custody provides both parents with the right to make major decisions affecting the child together. Sole legal custody means that one parent has the right to make all the major decisions without consultation with the other parent.

The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child considering, among other things, the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. See our Guidelines for Parents During and After Divorce for tips on fostering cooperation with your spouse.

Parties who desire joint custody are required to enter into a Joint Parenting Agreement that specifies each parent's powers, rights and responsibilities for the care of the children and for major decisions. The agreement must also lay out a procedure by which proposed changes, disputes, and alleged breaches may be resolved and it must provide for periodic review by the parents. If the parents are unable to come to their own agreement, the court can make a joint parenting plan for them or, alternatively, order sole custody to one parent.

Physical Custody: Equal Parenting Time or Not?

Physical custody means where the child will live and who will provide the hands-on, day-to-day care and supervision. Just because the parents have joint legal custody, they do not necessarily have to have equal parenting time. Parents with joint legal custody may agree on the physical residence of the child and, if they cannot, the court will determine the custodial arrangement.

There are many creative possibilities for sharing parenting time. Parents with joint legal custody can adopt an equal or nearly equal time sharing arrangement if their respective homes and schedules permit. One such arrangement many parents have adopted is alternating weeks with the children. However, it is not uncommon for one parent with joint custody to be the primary residential parent and the other parent to have visitation.

If one parent has sole legal custody, he or she will also be the primary residential parent. A parent not granted custody is entitled to reasonable visitation rights unless visitation would endanger the child.

If the Parents Cannot Agree on Child Custody

If the parents cannot agree on a custody arrangement, the court may order mediation. Mediation of child custody disputes is an effective method of resolving child custody without a contested trial.

If mediation is unsuccessful, the court may next order a custody evaluation. The custody evaluator is a psychologist or psychiatrist with expertise in custody issues. The evaluator will meet with each parent, administer psychological tests, observe each parent with the children, and interview the children and others who know the family. The evaluator will prepare a report making recommendations regarding custody and visitation. The custody evaluation, although extremely stressful, may return the parties to settlement discussions instead of to trial.

If the dispute proceeds to trial, the evaluator will likely be a witness and most judges will give his or her testimony great weight.

Best Interests of the Child

In determining what custody arrangement is in the best interest of the child, the law requires the court to consider the following factors:

  • The parents' wishes.
  • The child's wishes.
  • The interaction and interrelationship of the child with the parents, siblings, and others who may significantly affect the child's best interest.
  • The child's adjustment to home, school and community.
  • The mental and physical health of all involved individuals.
  • Domestic violence or the threat of domestic violence.
  • Abuse.
  • The willingness and ability of each parent to facilitate and encourage a close relationship between the other parent and the child.
  • Whether a parent is a sex offender.
  • The terms of a parent's military family care plan.

How Can a Child Custody Lawyer Help?

A good child custody lawyer will help you resolve a custody dispute and draft a parenting agreement. Ideally, you will be able to avoid a trial on the issue of child custody, given how emotionally difficult this can be for you and your kids. If you do have to go to trial, your lawyer will advocate for your rights to your children — and will help you help your kids handle any evaluations or testimony.

If you would like to have your case evaluated by an experienced Illinois child custody lawyer, we welcome you to contact Weiler & Lengle. Our St. Charles, Illinois law firm serves families throughout the Tri-City / Fox River Valley area. Our child custody lawyers have many years of experience advocating for parents during and after divorce. We are committed to informing and supporting your choices to reach the best outcome for you and your children.

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