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Child Custody, Visitation, and State Removal FAQ
(provided by Ernest Walton, Esq.)
1. What factors are relevant in determining child custody?
The best interest of the child govern. That is determined by considering the following factors:
a. the parents' wishes;b. the child's wishes;
c. the relationships between parents and child;
d. the child's relationship to home, school, and community;
e. the physical health of all;
f. physical violence or the threat thereof;
g. the ability of the parents to cooperate; and
h. the residential circumstances of each parent.
As a practical matter, if, and only if, the parents agree, joint child custody may be granted.
2. How is the amount and schedule of visitation determined?
There are no formal rules regarding the amount and schedule of visitation. Generally, Courts will permit a nonresidential parent to have parenting time with a child for up to 50% of a child's waking hours. So, parental involvement is encouraged. Nevertheless, there is no formal or legal presumption that necessitates extremely liberal visitation; a nonresidential parent must be prepared to prove it is in the child's best interest.
3. When may a custodial parent arrange remove a child from Illinois?
The best interest of the child governs. The following factors are relevant in determining the best interest of the child:
a. whether the proposed move will enhance the quality of life for the child and custodial parent;b. whether the proposed move is motivated to frustrate the other parent's visitation;
c. whether the noncustodial parent's objections are motivated by animus for the custodial parent;
d. whether and to what extent realistic, reasonable visitation schedules may be maintained after removal; and
e. whether the noncustodial parent has exercised previous visitation rights.
4. When may custody be modified?
In an adverse proceeding, a party must show that custody should change by "clear and convincing evidence." However, custody may be modified if the parties so stipulate.
a. Custody may be modified if the child suffers endangerment to his physical, mental, and emotional health.
b. After 2 years, custody may be modified if there has been (1) a change in circumstances and (b) it would be in the best interest of the child. The normal custody factors are used.
This burden of proof by the noncustodial parent is far greater than the normal "by the preponderance of the evidence" burden. Even if the same factors are employed as in initial custody proceedings, the noncustodial parent now has the burden of proof, and that burden of proof, "by clear and convincing evidence," creates a clear presumption in favor of the custodial parent.
Information provided by:
Ernest Walton, Esq. located at
http://www.divorcejustice.com
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