Best Interest of the Child When Determining Custody

       children in the snow  The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) proclaims that the court shall determine custody in accordance with the best interest of the child.  However, what does “best interest of the child” actually mean?  What kind of criteria can the court consider in making their custody award?

            To guide the courts, Section 602(a) of the IMDMA provides the following list of relevant factors that the court must consider:  (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 or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; (9) whether one of the parents is a sex offender; and (10) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.

Nonetheless, the aforementioned list is not exhaustive in determining custody.  The court may consider, in addition to the factors enumerated in Section 602, the sufficiency and stability of the respective parties’ homes and surroundings.  See In re Marriage of Fahy, 208 Ill. App. 3d 677, 695 (1st Dist. 1991).  Thus, the court may take into account the respective neighborhoods of the parents, the school districts that the child would be enrolled in if living with either parent, or the range of extracurricular opportunities available in each community.  Section 602(a)(3) further allows the court to assess the interaction and interrelationship of the child with any other person who may significantly affect the child’s best interest.  This can include relationships between the child and his or her step-parents, grandparents, or half-siblings if said relationship would affect the minor child.

It is important to note that the court’s focus in determining custody is on the child, not the parent.  Accordingly, the court will not consider the conduct of a parent that does not affect his or her relationship with the child, except in cases involving violence or abuse.  In conclusion, while the court must look to the criteria provided in Section 602(a) of the IMDMA to award custody, the court can consider additional factors if it impacts the minor child.

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