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Child Custody Proceedings in Illinois
When the divorcing parties have children, a myriad of fears and uncertainties present themselves. Some of your most fundamental personal liberties - decisions on how you raise your children - are in the hands of a judge who knows nothing about you or your family. The best interests of the children are paramount in every divorce and if the parents are unable to agree on custody, visitation and other important child-related issues, the court will make decisions that will then be imposed upon the parties.
Ordinarily parents make decisions about their children together. But when parents divorce, the hostility between them sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even parents who have done a great job while married may find it useful to consult a child development expert for help in meeting these challenges. Issues related to children can present challenges for your lawyer as well. While your lawyer's loyalty is to you, your lawyer also has an obligation as an officer of the court to keep the best interest of the children in mind, even if that interest is inconsistent with yours.
Legal and Physical Custody in General
Legal custody is the right to make important long-term decisions affecting your children's welfare. Long-term decisions made by the parent with legal custody may include the children's education, religion, and non-emergency medical care. Physical custody (or possession) is the responsibility of having the children live with you. The parent with whom the children are residing at the time has the responsibility for making day-to-day decisions. Day-to-day decisions include what the children eat and wear, who they play with and when they go to bed.
Usually the parent without physical custody has visitation rights or parenting time. The terminology is less important than how the arrangement works in practice. Joint Custody, where the parents share the decision making power, has become the rule, rather than the exception in Illinois. A prerequisite to an award of joint custody is the ability of the parents to put aside their differences and be able to cooperate in raising the children.
Custody Under Illinois Law
Illinois recognizes two basic forms of child custody: joint custody and sole custody. Joint custody has gained both notoriety and popularity over the past several years. At its best, joint custody allows for the maximum involvement of both parents in the lives of their children - signaling to the children that, despite their parents' differences, their needs are what is most important. At its worst, joint custody can serve as a source of ongoing disagreement and litigation between the parties - signaling to the children that they are merely pawns in their parents never-ending battles.
Successful joint custody is not easy. It takes hard work, dedication and a great deal of compromise. Children grow and change and their needs fluctuate year to year. As such, the Parenting Agreement that made perfect sense at the time of the divorce must be reviewed and updated regularly. If parents are not willing to recognize this simple fact and work together for the best interests of their children, joint custody will not be successful.
Joint custody requires parents to consult and cooperate on all significant matters concerning the children - education, health care, religious training, etc. If the parties did not co-parent the children during the marriage, there is little reason to believe that joint parenting will occur after the divorce.
A common misperception among parents is the notion that joint custody means equal parenting time. Not so. Parenting time for the non-custodial parent is the same in both sole and joint custody situations. Another common misperception is that an award of joint custody will prevent the custodial parent from moving out of state with the children. A custodial parent cannot unilaterally move out of state absent agreement of the other parent or an order of Court, regardless of whether he or she holds joint or sole custody of the child.
The Court can award joint custody only when such an arrangement serves the best interest of the child. When the parties are in agreement about joint custody, they will enter into a Joint Parenting Agreement. One parent will be designated as the "residential" parent with whom the child resides. Child support is paid to the residential parent, in the same amount as paid to a parent having sole custody. Residential status does not confer additional rights to that parent. It simply indicates with whom the child resides after the divorce.
The Judge is mandated by law to consider the following items when deciding which custodial arrangement serves the best interest of the child:
Visitation or Parenting Time
There is no one standard visitation arrangement. Some parents alternate weeks with the children and others alternate months; others divide the children's time unequally, but in a manner that meets the needs of each particular family. Parents who work out these arrangements themselves are usually more creative than courts are when the parents can't agree.
The Court Process in Contested Custody Cases
If the parents do not agree on major issues regarding the arrangements for the children after divorce (custody, visitation), the case is "contested". The vast majority of contested custody cases settle before (or during) trial. When the parties do not agree on custody, the court will require that they attempt to resolve their differences through mediation, custody evaluation and/or the appointment of an attorney to represent the children.
If the parents cannot reach an agreement on custody, the court can require the parties to attend mediation. The mediation process is used to assess what is in the best interests of the children as far as custody and visitation arrangements are concerned. A mediator is a neutral third party who helps the parties reach their own agreement. Please see our page on mediation for further information.
If mediation is unsuccessful, the court will order a custody evaluation. First, the Court will appoint a custody evaluator. A custody evaluator is a psychiatrist or psychologist with special training and expertise in custody issues. The evaluator will meet with each of the parents separately, conduct psychological testing of each parent (and possibly the children), observe each parent interacting with the children, interview the children and others familiar with the family (i.e. teachers, therapists, doctors, family members). The investigation may include interviews with the parents, the children, their teachers, their day care providers, neighbors, doctors and anyone else who is significantly involved with the children. The investigation usually includes psychological testing performed on both parents. The investigator usually writes a report and makes recommendations to the judge.
The recommendation can be helpful in reaching an agreement. If no agreement is reached, and the custody or visitation dispute must be decided by the court, the judge will probably read the report and be influenced by it.Once the interview portion is concluded, the custody evaluator will write a detailed report to the Court, making specific recommendations about who should receive custody and what visitation arrangements are in the children's best interests. The custody evaluator is the Court's witness, thus, the Judge will give great weight to the evaluator's recommendations in making the ruling. The cost of the custody evaluation is usually borne by the parties, in proportion to their respective incomes. If either mother or father does not agree to the custody evaluator's recommendations, a second custody evaluation, with a new evaluator, may possibly occur. The cost of the second evaluation is always borne by the party requesting same.
Lawyer for the Children
The court may appoint a guardian ad litem, attorney for the child or child's representative, to represent the children or look out for their best interest in a custody or visitation dispute. The roles of each professional vary but they are all charged with providing the court with information about the best interests of the children.
If after investigation, negotiation, and mediation, the parents are still not able to settle custody and visitation issues, these issues are presented to the court for decision in a trial in which witnesses are called and arguments are presented. Then the matter is out of the parents' control as the judge decides what arrangement to impose on them.
Children as Witnesses
Parents often want to know if their children will be called as witnesses. Professionals advise against involving children in court proceedings because it is a very traumatic experience for them. This is equally true whether the dispute is over custody or something else.
Many people incorrectly assume that at a certain age children have absolute rights to pick the parent with whom they will live. In Illinois, that is not the case. The preference of the children is only one of a number of factors that the court will consider in deciding a contested custody case. Only in rare instances will the Judge interview the children. If that interview occurs, it is held in the judges chambers (or office) with the attorneys present and a court reporter taking down everything that is said.
Very important information about children and divorce
In the heat of divorce proceedings, it's easy to lose sight of the fact that the parents are getting divorced and not the children. The behavior of parents before and after divorce has a great influence on the emotional adjustment of their children throughout their lives.
It is inappropriate to raise custody and visitation issues to gain an advantage in negotiations over financial issues. Such tactics do more harm to the children and the parenting relationship than you can imagine. Such behavior only heightens the emotional tension and makes settlement more difficult.
Spouses can file for a no-fault divorce in Illinois, as long as they have lived separate and apart for at least two years and state that irreconcilable differences ended their marriage. This two-year separation period may be waived "upon written stipulation of both spouses, filed with the court."
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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