How is Child Custody Handled in an Illinois Divorce Case?

 Posted on July 13, 2021 in Child Custody

When divorcing spouses share children, the divorce process is much more complex – legally, financially, and personally. If you are a parent getting a divorce in Illinois, it is essential to know what to expect. By educating yourself on child custody concerns, you can prepare for these concerns in advance. The better prepared you are, the better position you will be in to make the decisions that are right for you and your family.

For help, contact a skilled divorce lawyer who understands the unique challenges parents face during divorce and how to meet these challenges head-on. Getting divorced as a parent can seem overwhelming and intimidating, but you do not have to face this situation alone. An experienced attorney can protect your rights, explore your options with you, and help you take the legal steps necessary to accomplish your child custody goals. 

Determining Child Custody 

Illinois no longer uses the term “child custody” to refer to where a child lives and how parents divide parenting authority after a divorce. In 2016, the laws regulating child custody in Illinois changed substantially. Child custody is now broken down into two main components: parental responsibilities and parenting time. However, the terms child custody and visitation are still used informally to refer to parenting obligations and will be used throughout this blog for brevity.

Allocation of Parental Responsibilities

The allocation of parental responsibilities refers to how parents will make major decisions about the child’s upbringing, including:

• Medical and healthcare decisions

• Where the child will go to school

• The child’s religious instruction

• What extracurricular activities the child will participate in

Some divorcing couples decide that one parent will take charge of all major child-related decision-making. Other parents divide the responsibilities based on their unique situations. For example, if one parent is an educator, it may make sense for that parent to handle any school-related decisions while the other parent takes responsibility for other decisions.

Creating a Parenting Time Schedule

The 2016 Illinois family law updates replaced the term “visitation” with the word “parenting time.” This change is intended to reflect the fact that, in most cases, both parents are an important part of a child’s life. A parent is not simply “visiting” his or her child when he or she is fulfilling his or her parenting time responsibility.

Parenting time schedules vary widely. For some divorcing couples, it makes sense for the child to stay with one parent during the weekdays and the other parent during the weekends. Other families decide that a child will live with one parent during the school year and the other parent during the summer. For some, the parenting schedule must frequently change in order to accommodate a parent’s changing work schedule. 

Illinois law requires parents to create either:

• A parenting time schedule that describes which parent the child will live with on what days or

• A comprehensive method for determining a parenting time schedule on an ongoing basis that is detailed enough to be enforceable in court

Submitting a Parenting Plan to the Court

The parenting time schedule is a crucial component of the parents’ “parenting plan.” Parents are asked to create and submit a parenting plan to the court within 120 days of requesting parental responsibilities. If the parents agree on the issues contained in the parenting plan, they can send the same parenting plan to the court for approval. If the parents disagree, they can each send their own parenting plan to the court. Many divorcing couples are eventually able to reach an agreement about the parenting plan with help from their lawyers or through mediation or collaborative law. However, if parents are unable to reach an agreement, the court may intervene.

Required Elements in a Parenting Plan

Parenting plans cover a wide assortment of concerns. Per Illinois law, a parenting plan must include provisions addressing:

• How parents will make major decisions about the child

• A parenting time schedule or method for determining parenting time

• Travel arrangements for transporting the child between the parents’ homes

• A designation of the parent with the majority of the parenting time (formally called the “custodial parent”)

• How parents will handle any future changes to parental responsibilities or parenting time

• Requirements of a parent who is relocating to a new residence

• How parents will handle any problems or disputes resulting from a parental relocation

• Each parent’s right to access information and reports about the child’s education, healthcare, and extracurriculars

• Each parent’s right to be notified about medical emergencies, travel plans, and other major child-related concerns

• How the “right of first refusal” will apply

Parents are required to address these elements but are encouraged to include any other provisions that are relevant to their specific situation. The more robust the parenting plan, the better position the parents will be in to be effective co-parents after the divorce.

Parental Responsibilities and Parenting Time During the Divorce Case

Divorce cases can take several months or even a year or more to complete. This is especially true if the spouses disagree about property division, spousal maintenance, child-related concerns, or other divorce issues. You may be curious how child custody will be handled between the initial separation and the divorce’s resolution.

In most cases, courts aim to preserve the “status quo.” This means that courts favor keeping the current child custody arrangements rather than changing them. Divorce is hard on children and courts want to minimize the disruption in children’s lives as much as possible. 

Consider the following example: When a married couple split up, the father moved out into his own apartment. Their son remained in the family home with the mother. During the divorce case, the court is likely to favor this custody arrangement because the child is already used to living with his mother.

That being said, the courts prioritize a child’s well-being in any legal decision. If, for example, the mother in this scenario had a drug or alcohol addiction that left her unable to properly care for her son, the court would likely award temporary custody to the father.

The Court Will Determine Parenting Arrangements for Parents If They Cannot Agree

Some parents are not able to reach an out-of-court agreement on the elements of the parenting plan. If you and your spouse cannot reach a resolution, the court will make a decision on the unresolved issues for you. In any child custody case, the court prioritizes the child’s best interests above all else.

When determining what is in the child’s best interests, the court will consider:

• Each parent’s wishes regarding parental responsibilities and parenting time

• The child’s needs

• The child’s preferences

• How adjusted the child is to his or her home, school, and neighborhood

• The parents’ mental and physical health

• The parents’ ability to cooperate with each other

• Each parent’s level of involvement in the child’s life

• The prior child custody arrangements and any prior agreements about custody or parenting time

• Whether either parent should have his or her parenting time restricted

• Each parent’s willingness and ability to facilitate a positive relationship between the child and the other parent

• Any instances of abuse or violence

• Whether a parent is a registered sex offender

• Transportation arrangements

The Role of a Guardian Ad Litem

In some child custody disputes, the court assigns a guardian ad litem (GAL) to the case. The GAL represents the child’s best interests. To determine what is in the child’s best interests, the GAL may:

• Interview the parents

• Visit each parent’s home

• Interview the child and his or her siblings and household members

• Review school reports, medical records, child protective reports, police reports, and other records

The GAL evaluates this information and uses it to decide what outcome he or she feels is in the child’s best interests. The GAL then present’s his or her opinion to the court. The court is not required to follow the GAL’s recommendation; however, the GAL’s opinion carries significant weight.

Temporary Orders

In some child custody cases, the court will issue temporary orders addressing parental responsibilities and/or parenting time. These “temporary relief orders” may also address child support, alimony, temporary possession of the marital home, and the sale or transfer of marital property. Temporary orders may be modified if a parent experiences a “significant change in circumstances” necessitating the change.

Restricting Parenting Time or Parental Responsibilities

In an ideal world, every child would have both of his or her parents closely involved in his or her life. Unfortunately, this is not always feasible. In some cases, it is in the child’s best interests that a parent’s parental responsibilities or parenting time be restricted in some way.

Illinois courts presume that parents are loving, competent caretakers unless there is sufficient evidence to the contrary. Therefore, courts only restrict a parent’s rights when there is a concern for the child’s well-being or safety. Before a restriction is placed on a parent’s parenting time or parental responsibilities, a hearing is held during which the judge evaluates the evidence and arguments for and against the restriction. The court may restrict parental responsibilities if it finds that a parent’s behavior seriously endangered or impaired the child’s physical, mental, emotional, or moral well-being. The court may restrict parenting time if it believes that unrestricted parenting time may endanger the child’s physical, mental, or emotional welfare.

Some examples of situations that may lead to a restriction include:

• Physical, mental, or sexual abuse of the child

• Risk of kidnapping

• Child neglect

• Drug or alcohol addiction

• Severe mental illness

If deemed necessary, the court may impose whatever restrictions are appropriate for the situation. Restrictions may include but are not limited to:

• Reducing a parent’s decision-making authority or eliminating the parent’s parental responsibilities entirely

• Requiring parenting time to be supervised by a Department of Children and Family Services (DCFS) worker, a family member, or another responsible adult

• Requiring an intermediary to be present when parents pick up or drop off children

• Requiring a parent to post bond to ensure that he or she returns the child

• Requiring a parent to complete a drug or alcohol treatment program

• Restricting when and how a parent communicates with the child

• Prohibiting a parent from using drugs or alcohol during or immediately before parenting time

• Restricting who can be present during a parent’s parenting time

Contact an Elmhurst Child Custody Lawyer for Help

Child custody can be a complicated and contentious aspect of divorce. If you are a parent who is getting divorced, contact a DuPage County divorce attorney from Weiss-Kunz & Oliver, LLC for help. Our attorneys have extensive experience in parenting plan negotiations, mediation, collaborative law, and child custody litigation. We can help you understand all of your legal options and choose the option that is right for you.

The skilled legal team at Weiss-Kunz & Oliver, LLC understands just how complex and sensitive child-related issues can be. We know that you may be feeling frustrated, confused, and overwhelmed. You do not have to figure everything out on your own. Let us help. Call 312-605-4041 for a confidential consultation to learn more.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

https://www.ilga.gov/legislation/ilcs/documents/075000050k501.htm