In a divorce proceeding, determining who will have residential custody of a child can be the most contentious and emotionally difficult part of the entire process. Many people believe that courts have a preconceived notion over who will be a better parent. The most common charge is that mothers have an unfair advantage in custody disputes. While this might have been true several decades ago, it is not an accurate statement of the law today. When deciding custody, judges have to decide what is in the child’s best interests. This is a fact intensive issue, that will differ from case to case.
This article will briefly highlight Illinois child custody law, and identify specific factors that courts consider in making custody decisions.
In a nutshell, Illinois defines child custody in two respects: legal custody and residential custody. Legal custody involves the ability to make important decisions in the child’s life (such as what religion, if any, the child may practice, where the child will attend school, and approving medical treatment). Residential custody determines where the child lives or spends a majority of time. Residential custody will also determine who has the obligation to pay child support.
Parents may share legal custody (hence, the label joint legal custody), or legal custody may be vested in one parent (i.e. sole legal custody). While it is possible to share residential custody, such arrangements are oftentimes impractical or would impose too much stress on the parties’ children. Not surprisingly, courts are generally reluctant to award joint residential custody.
Under Illinois law, married parents have joint residential and legal custody of a child born of the marriage while they are married. With unmarried parents, the mother has sole legal and residential custody of the child until a finding of paternity is made and the father petitions the court for some form of custody.
When a mother and father cannot agree on legal or residential custody, that decision will have to be made by a judge. With respect to legal custody, the court will have to determine if the parents are able to communicate with one another. If two parents cannot communicate concerning their children, a court will be reluctant to award joint legal custody. In those situations, a court will probably award sole legal custody to the parent who is given residential custody of the children.
Sole legal custody, however, does not cut the non-custodial parent out of the child’s life. The non-custodial parent is still entitled to the child’s school information, medical information, and other information concerning the child. The non-custodial parent, for example, is entitled to speak the child’s teachers and physicians, and attend the child’s activities.
With respect to residential custody, the court will evaluate many factors including, but not limited to, (a) the child’s relationship with each parent, (b) the ability of each parent to care for the child, (c) the wishes of each parent, (d) the mental and physical health of each parent, (e) the child’s wishes (depending on the child’s age and emotional development, and (f) the occurrence of ongoing and repeated abuse. Generally, a parent that has been the child’s primary care giver during the marriage will have an advantage with respect to residential custody during a divorce proceeding.
Child custody cases are intensely fact specific, and it is important to speak to an experienced family law attorney before letting emotions or fear dictate your decisions should you be faced with a custody battle.