Frequently Asked Questions About Child Custody
Here are answers to some of the most frequently asked Illinois child custody questions, from the top-rated Chicago family law firm of Anderson & Boback. We understand emotions run high when couples with children split up or divorce, which is why we provide answers to all your legal questions about child custody to help you make the right decisions that allow you to move forward.
Common Child Custody Questions we hear every day include:
In Illinois, it no longer uses the term "child custody"– we now call it Allocation of Parenting Time. This means that all court orders entered now relating to where the children spend their time are called Allocation Judgment which allocate parenting time and not Custody. The term most closely related to “full custody” is being the “primary parent”. To be the “primary parent” you must file a petition with the court requesting to be allocated a majority of the parenting time based on the facts that are present in your specific matter. To start the process of obtaining an order naming you the primary parent and be allocated a majority of the parenting time you will need to talk with an experienced lawyer about the factors that are listed in the law regarding what is in the best interest of the child. Understanding these factors will help you work with your lawyer in gathering the proper evidence required to be successful in becoming the primary parent.
Typically, the filing fee is around $350, but this cost can vary by county. It does not matter who files first, as the Court is charged with dividing your estate equitably. Your spouse won’t get more time with the kids because they filed first. There is no legal advantage. There is a fee to file an appearance, which is what your spouse will be required to file. Essentially, both of you will be paying some sort of filing fee to get your case started. Your divorce attorney can help to determine what the fee is in your county and if you qualify for a reduced fee.
If you are designated the primary parent in that does not mean that the other parent does not have the right to see the child. The parenting time must be designated to each parent. The other parent may have one or two days each week, but they will (outside of special circumstances where parenting time would cause emotional, physical or mental harm to the child) have designated time with the child.
Child support is a calculation that is based upon both parents’ income combined with the number of overnights each parent has. Child support will depend on both parents’ incomes and the amount of overnights in your parenting time schedule. The caveat is that until both parents have at least 146 overnights the overnights do not cause much change in the child support calculation based solely upon incomes. The best way to think about that is if you are the recipient of child support from the other parent and they have less than 146 overnights each year then your support would be higher than if they had 146 or more overnights each year.
These orders are temporary and will most likely change at the time of the final court hearing when your divorce becomes final. It’s important to speak with an experienced divorce attorney to ensure that your temporary orders are filed timely and ensure you receive the proper amount for your support.
In Illinois, there is no causal connection between a spouse’s infidelity in marriage and the amount of parenting time or custody of the children. When it comes to custody and parenting time, the court is concerned about the quality of the parental relationship with the child. Illinois is a no ground divorce state, so even if your spouse is unfaithful, it is no longer a consideration in Illinois courts.
Illinois no longer uses the term Custody – so parenting time is now the vernacular for custody. Previously someone would be the custodial parent or “win” custody and the other parent would be the non-custodial or parent with visitation. The law has removed the words “custody” and “visitation” and replaced them with the words “parenting time”. Both parents have designated time with the child and that is now known as each parent’s parenting time. The parent with a majority of the parenting time is considered the primary parent.
There are important provisions that should be addressed in a child custody agreement. A detailed parenting time schedule is important to outline clearly which means the days and times that the child will be with each parent. You also want to make provisions for transportation and usually, we recommend that the parent beginning their parenting time is in charge of picking up the child. You want to make sure to put together a holiday schedule so that you can keep intact any traditions you have developed with your children and your family for special holidays. You want to consider breaks from school and summer vacations and decide how many days each parent can exercise for vacation periods and all parameters surrounding travel including the time frame for notification of all travel. You want to consider whether a right of first refusal works for you and the specific rules relating to that provision. You will want to agree on how you are going to deal with issues that may arise so that you can stay out of court. Having a mechanism for resolution via writings and/or mediation is often required by the courts when you are sharing parental responsibilities.
When a couple with children divorces, neither party is allowed to move the child out of the state without the express consent of the other parent or approval by the court. In fact, the rules for how far away you are allowed to move depend upon which Illinois county you reside. Statute 750 ILCS 5/609.2 outlines the law relating to a parent’s relocation, which requires at least a 60-day written notice given to the other parent under the allocation judgment or parenting plan. A copy of the notice must be filed with the clerk of the circuit court. The notice must include the intended relocation date, the new address if known, and the length of time for the relocation, if not a permanent move.
If the non-relocating parent signs the notice with approval, the court is likely to grant the request to relocate. If the non-relocating parent objects to the relocation, the parent seeking to relocate must file a petition with the court seeking approval for the move.
In the state of Illinois, moving with your child was pretty straight forward. You could not leave the state of Illinois without the other parent's consent or court approval. However, the law changed in January 2016. In this video, attorney Janice Boback discusses Illinois child relocation laws, how far you can move and the ins and out of relocating with your child in a divorce.
Be sure to speak with an experienced child relocation lawyer to help interpret the statute and explain your options and assist you with the process of whether you are planning to move or contesting a move.
The court takes into consideration the facts of your case against the factors that are listed in the Illinois Law. You will want to understand the factors and work with your attorney experienced in these matters so that you can best present your case in relation to the best interest factors:
- wishes of each parent;
- wishes of the child, taking into account the child's maturity;
- amount of time each parent spent caretaking in the 24 months preceding;
- prior agreement or course of conduct relating to caretaking;
- relationship of the child with parents and siblings and others;
- child's adjustment to his or her home, school, and community;
- mental and physical health of all individuals involved;
- child's needs;
- distance between the parents' residences;
- whether a restriction on parenting time is appropriate;
- physical violence or threat of physical violence
- willingness/ability to place the needs of the child ahead of your own needs;
- willingness/ability to facilitate a relationship with the other parent;
- occurrence of abuse against the child or other member of the child's household;
- whether one of the parents is a convicted sex offender or lives with one
- terms of a parent's military family-care plan; and
- any other factor that the court expressly finds important and relevant.
The court will often times appoint guardian ad litem to be the eyes and ears of the court and do an independent investigation into what is in the best interest of the child. If you and your spouse are working towards an agreement either with your respective attorneys or in mediation, then a court will not likely appoint a guardian for your child but if it becomes apparent that you are not able to work out a solution then the court is very likely to appoint a guardian for your child. The guardian is a lawyer that will have to be paid pursuant to an order of the court based on your financial circumstances.