What happens when parents do not stay together, and disagree on child related issues? When a child is brought into the world there is no guarantee that the child’s parents will stay together, whether they are married or not, at the time of the birth or adoption. If someone takes action in court, then a Judge will decide what is in the child’s best interests based on Illinois child custody laws if the parents are not able to come to an agreement on their own. In this article, we discuss what to expect in a typical child custody process in Illinois.
In general, it is best when parents can come to an agreement regarding their child. Who is to make the big decisions relating to the child’s education, healthcare, involvement in extracurricular activities, and religious upbringing? Where will the child attend school? How will the parents share time with the child? What about holidays and vacations? There are several items to address when resolving child custody issues that need to be considered while drafting any sort of agreement relating to your child.
It’s always best when these issues are figured out in a timely-fashion. Once the child custody process begins in court, the clock is ticking. If parents cannot come to an agreement, then orders will be entered and eventually there will be a hearing, at which time the Judge will decide what is in your child’s best interests.
Temporary Orders to Resolve Immediate Child Custody Issues
When parents are having trouble reaching an agreement about their child they may need some sort of temporary relief. The court may temporarily allocate parental responsibilities before the entry of a final “Allocation Judgment.” This means that the court can temporarily allocate what parent makes what major-decisions. The court may temporarily allocate parenting time and may enter a temporary parenting schedule. The court will enter temporary orders that are in the child’s best interests based on Illinois child custody laws.
Mediation in the Child Custody Process
One of the first steps of the child custody process is for the parents to attempt mediation.
In Cook County specifically, parents are typically ordered to attend mediation through the County. Parents can also be ordered, however, to attend mediation through a private mediator. As you can imagine, there is usually a cost associated with mediation, especially if ordered to a private mediator. There are some situations where the court will not order mediation, such as cases of domestic violence.
Knowing that mediation is likely once you are in court, remember that mediation can always be attempted prior to initiating court proceedings. You will likely save time and money resolving child custody issues with little to no court involvement.
Appointment of Attorney on Behalf of Child
If mediation fails during the child custody process, there is a possibility that an attorney will be appointed on behalf of your child. Either parent can motion for this to happen, but the court can also order this on its own motion. The attorney will serve in one of the following capacities: “child’s attorney,” “guardian ad litem,” or “child representative.” The court will define what issues need to be addressed by the appointed attorney. In my experience, the appointed attorney usually serves as a guardian ad litem or child representative when resolving child related issues.
Guardian ad litems give their recommendations as to what is in the child’s best interests by either testifying or submitting a written report to the court. The report is available for the parents to examine. The guardian ad litem investigates the facts of the cases and interviews the child and the parents prior to making their report. If the parents still cannot reach an agreement after receiving the appointed attorney’s recommendations then the guardian ad litem can be called as a witness, so that the parents can cross-examine, or ask questions, about their report.
A child representative is a little more involved, as they are appointed to advocate what they believe to be in the child’s best interest. They do not submit a report with their recommendations, as guardian ad litems do. The child representative will review and investigate the facts of the case. The child representative will meet with the child and with the parents and they will encourage settlement. The child representative considers the expressed wishes of the child, but they are not bound by just those wishes. A child representative discloses to the parents, their position, by way of a pre-trial memorandum.
Child Interview with the Judge
Children need to be protected during the child custody process when their parents are involved in child-related disputes. Generally, you do not want the child to know what is really going on in court. Saying it is frowned upon to discuss court proceedings with your child, is an understatement. However, there are certainly times when a child wants to be heard and wants to be involved. Sometimes a child does not feel like the Judge is really hearing what is best for them and they want to tell the Judge themselves.
Depending on the child’s age and other factors, the court may interview the child privately in the judge’s chambers. Typically, the attorneys for the parents will be present in chamber during the interview but either way, the interview is recorded by a court reported, so that the judge has a transcript of the interview to look back at later in the proceedings, if necessary.
Professional Evaluations During the Child Custody Process
If no agreement is reached, even after an attorney being appointed on behalf of your child, either parent is able to request appointment of a professional evaluator pursuant to Section 604 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604). This should not be taken lightly. Evaluators are usually psychologists or psychiatrists and they investigate by digging deep. They will interview the parents, the child with the parents, and collateral contacts. These collateral contacts could be a relative, a friend, an adult child, a daycare provider, etc. There will also be psychological testing, the extent based on the allegations and facts in the child custody case.
The evaluator will give the court a written, detailed, report. In the report, the evaluator will present their recommendations as to the best interests of the child and the facts that they relied on to make those recommendations.
Child Custody Hearing
This is when you and your child’s other parent will present evidence and exhibits. You will give testimony and witnesses will be called to the stand. This is where everything else mentioned-above comes into play. Maybe the court interviewed the child at some point, that will be something the judge takes into consideration when making a final decision. The guardian ad litem may be questioned at the hearing. The child representative may examine and question the parents at the hearing. If there were any professional evaluations during the proceedings, the evaluator will likely testify, and the court will usually weigh their recommendation heavily.
This is your shot to argue your side of the story and to express what you believe is in your child’s best interests but remember that the other parent also has this opportunity. If you and the other parent cannot come to an agreement regarding your child, then the judge will make the final decision as to what is in your child’s best interests based on the facts presented.
Anderson, Boback & Marshall are experienced family law attorneys in Chicago, with a focus on Illinois child custody laws. Contact us today for a confidential consultation and for skillful legal representation throughout the entire child custody process.