Child Custody and the UCCJEA

In Illinois custody is determined by looking at what the courts deems in “the best interest of the children”. Normally, after a divorce, any future issues that arise between the two parties remains in the same county courthouse where the divorce occurred. This includes issues regarding child custody. The reason that future issues are litigated in the same county courthouse is that the county where the divorce occurred retains jurisdiction of the case. The following articles regarding Child Custody are for reference purposes only.

Child Custody Article-1: UCCJEA

Many times after two people are divorced, one of the parties moves to another state. This move can be for many different reasons, but usually it is to begin their life anew and away from their ex-spouse. However, moving to another state after a divorce can present many difficult legal challenges when children are involved.

Normally, after two people are divorced, any future issues that arise between the two parties remains in the same county courthouse where the divorce occurred. This includes issues regarding child support and child custody. The reason that future issues are litigated in the same county courthouse is that the county where the divorce occurred retains jurisdiction of the case. Jurisdiction simply means that the court has the power to hear and resolve the issues in the case.

When one party moves to another state, the same county courthouse may no longer have jurisdiction, or the power to hear and resolve the issues in the case. This is especially true for future litigation regarding child custody and visitation. The reason for this is that child custody and visitation are state issues. Although each of the 50 states are part of the United States of America, the laws regarding custody and visitation vary significantly from state to state. The reason for the variation in laws is that issues regarding families are viewed as state issues and not federal issues. This means that each state makes their own laws and there is not a uniform federal law regarding custody and visitation.

Since each state has different laws regarding custody and visitation, a common question arises as to which state’s laws apply when one parent lives in one state and the children and the other parent live in a different state. In order to help solve the confusion regarding which states laws govern, most states (38 to date) have adopted the Uniform Child Custody Enforcement Act (UCCJEA). The UCCJEA creates a common law for each state to determine which state’s law governs and what courthouse has jurisdiction. Illinois has followed the UCCJEA since January 1, 2004.

The UCCJEA determines which state’s law governs based, in part, on the following: (1) where all the parties currently reside, and (2) whether any party has a significant connection to where the original divorce decree was entered. This means that even if a child and one parent have moved out of state, and the other parent remained in the original state, then the original county courthouse where the divorce occurred may continue to have jurisdiction. Accordingly, you may have to litigate custody and visitation issues in a state where you do not live and according to laws that are different then the laws in the state where you currently live.

Child custody and visitation matters can be a complicated issue. Anderson & Boback has extensive knowledge regarding the UCCJEA and has litigated numerous cases with great success. For more information please call Anderson & Boback at 312-920-0870.

Child Custody Article-2: Child Custody

The hardest part of most divorces is deciding who gets custody of the children. In an ideal world, the children would be able to live with both parents. The truth of the matter is that this is not realistic nor is it fair to the children. Having the children bounce back and forth from one parents house to another does not create the kind of stability needed for children to thrive in today’s society.

Judges do not like to make custody determinations. Judges want the parents to decide what is best for their children. Accordingly, in Illinois, whenever visitation and custody matters are being litigated, the Judge will send the parties to mediation. Mediation involves a neutral third party, usually a state agency, who listens to what each parent has to say about why they should have custody over the other parent. One of the main goals of mediation is to allow the parents to try to agree on a solution without further litigation. If the parties can not agree to a final custody and visitation schedule after mediation, then the mediator will make recommendations to the Judge about how custody and visitation should be set up temporarily. Almost always the recommendations of the mediator as to who should have temporary custody and visitation are followed by the Judge.

In Illinois custody is determined by looking at what is in the best interest of the children. The court considers eight (8) different factors in making its decision. The factors include:

(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing abuse; and
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

In effect, the statute gives the Judge a checklist by which to determine a custodial arrangement that is in the best interest of the children. A parent does not need to have all the factors in their favor in order to be awarded custody of the children. However, the more factors that you have in your favor the better chance of being awarded custody by the court.

Fighting for custody can be a lengthy and expensive process. A custody battle can go on for years before it goes to trial. The Law Office of Anderson & Boback is a prominent and successful law office that has litigated many custody cases with great success. For more information please call Anderson & Boback at 312-920-0870.

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