Illinois
Child Custody Law

Illinois Child Custody Guide :: Table of Contents

What Is Child Custody?
Child Custody Factors Table
Illinois Child Custody Law Summary
How Child Custody Is Decided In Illinois
Illinois Child Custody Law Text

Child Custody General Information - What Is Child Custody?

Child custody is defined as the guardianship over a child, which covers both physical custody and legal custody. In a child custody dispute the court may award joint custody to both parents or sole custody to a single parent.

Child custody cases in Illinois can be either contested and resolved by court order, or noncontested and defined in a child custody agreement between the parents. A custody agreement or order will legally determine, at minimum, the following things:

Where the child lives (physical custody)
Who is involved in making parenting decisions (legal custody)
How the visitation schedule with non-custodial parents or relatives is arranged

This page describes how a contested child custody case is handled in the Illinois court system, and what factors are used to determine which parent gets custody.

Illinois Custody Court Considerations Table

Statutory Factors
Childs Wishes
Joint Custody Authorized
Favor Joint Custody
Cooperative Parent
Domestic Violence
Attorney or Guardian Ad Litem For Child

Illinois Child Custody Law Summary

After a breakup or divorce in Illinois, couples with children must come to a child custody agreement that describes which parent the children will live with, how visitation will be scheduled, and how the non-custodial parent will pay child support.

Some of the factors considered by Illinois in child custody cases include the child's wishes, willingness of the parent to cooperate with their partner and any history of domestic violence.

Which Factors are Considered in Granting Custody?

The court shall consider the following factors in granting custody:

the wishes of the child's parent or parents as to his custody

the wishes of the child as to his custodian

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

the child's adjustment to his home, school and community

the mental and physical health of all individuals involved

the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person

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

the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child

whether one of the parents is a sex offender

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.

What Happens If/When One of The Parents are Deceased?

When one of the parents is deceased, by a grandparent who is a parent or stepparent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent's death:

the surviving parent had been absent from the marital abode for more than one month without the deceased spouse knowing his or her whereabouts

the surviving parent was in State or federal custody

the surviving parent had:
- received supervision for or been convicted of any violation of Article 12 towards the deceased parent or the child
- received supervision or been convicted of violating an order of protection based upon the Illinois Domestic Violence Act of 1986.

How is Child Custody Commenced?

A child custody proceeding is commenced in the court through the following:

by a parent, by filing a petition for dissolution of marriage or legal separation or declaration of invalidity of marriage; or for custody of the child.

by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents

by a stepparent, by filing a petition, if all of the following circumstances are met:
- the child is at least 12 years old
- the parent and stepparent have been married for at least 5 years during the care of the child
- the parent is deceased or is disabled and cannot perform the duties of a parent
- the stepparent provided for the care to the child before the initiation of custody
- the child wishes to live with the stepparent
- it is in the best interest of the child to live with the stepparent

What Happens if the Parents are Not In Agreement?

The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child.

The residential status of each parent

all other factors that is in the best interest of the child.

In the event the parents do not produce a Joint Parenting Agreement, the court may enter a Joint Parenting Order under the standards of the law.

Illinois Child Custody Factors - How Is Child Custody Decided In Illinois?

If the parents are on amicable terms they may agree to custody terms in a parenting agreement between themselves, or via a mediator. If child custody is disputed, however, they will have to receive a child custody order from a Illinois judge, who will attempt to make a custody decision that is in the "best interests of the child".

In the state of Illinois, a number of factors are taken into account by the courts when determining who gets child custody. This section describes Illinois' custody factors, considerations, and presumptions when evaluating a custody order.

Is there a set list of statutory factors for calculating child custody in the state of Illinois?

Illinois has a list of statutory factors that are considered by the court when determining a custody order. This list may include factors such as the child's age, the living situation of each parent, any history of abuse or neglect from either parent, etc. Although there is a statutory list of factors, consider other factors at its discretion depending on the particular circumstances of the case.

Do judges in the state of Illinois favor joint custody?

Judges in Illinois are authorized to order either joint or single-parent custody of a child subject to a custody dispute.

Courts in Illinois do not have a presumption in favor joint custody orders when evaluating child custody. The judge will evaluate the specifics of the custody dispute to determine what custody arrangement is in the best interests of the child.

Do Illinois courts encourage parents to cooperate together to raise the child?

Illinois courts favor awarding custody to a cooperative parent who is willing to work together with the other parent regarding child visitation, scheduling, child support, and other co-parenting matters. Illinois law favors co-parenting as being in the best interests of the child, and the courts will favor a parent willing to cooperate over a parent who attempts to alienate their child from the other parent.

Are the child's wishes considered when determining custody in the state of Illinois?

In Illinois, the court does consider the child's reasonable wishes when determining which parent wins custody. The judge may take the child's age, maturity, and judgement into consideration when considering the child's custody preference.

Do Illinois courts consider domestic violence when determining custody?

Illinois has laws that explicitly permit the consideration of domestic violence in conjunction with child custody. This may mean that domestic violence is a statutory factor in custody determinations, that the court has a presumption against custody for abusers, or that special procedural considerations are imposed in cases involving domestic violence.

Do the courts in the state of Illinois have the right to hire an attorney or Guardian Ad Litem to represent the child?

Illinois has statutory authority for appointment of a guardian ad litem or attorney specifically to represent the child in a custody case. This person advocates for the best interest of the child, and is tasked with investigating the family situation and advising the court what custody situation would be in the best interests of the child.

| State Law Official Text

Section(s):
750 I LL . COMP. STAT. 5/601 750 I LL . COMP. STAT. 5/602 750 I LL . COMP. STAT. 5/602.1

(750 ILCS 5/601) (from Ch. 40, par. 601)

Sec. 601. Jurisdiction; Commencement of Proceeding.

(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 201 of the Uniform Child‑Custody Jurisdiction and Enforcement Act as adopted by this State.

(b) A child custody proceeding is commenced in the court:

(1) by a parent, by filing a petition:

(i) for dissolution of marriage or legal

separation or declaration of invalidity of marriage; or

(ii) for custody of the child, in the county in

which he is permanently resident or found;

(2) by a person other than a parent, by filing a

petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents; or

(3) by a stepparent, by filing a petition, if all of

the following circumstances are met:

(A) the child is at least 12 years old;

(B) the custodial parent and stepparent were

married for at least 5 years during which the child resided with the parent and stepparent;

(C) the custodial parent is deceased or is

disabled and cannot perform the duties of a parent to the child;

(D) the stepparent provided for the care,

control, and welfare to the child prior to the initiation of custody proceedings;

(E) the child wishes to live with the

stepparent; and

(F) it is alleged to be in the best interests

and welfare of the child to live with the stepparent as provided in Section 602 of this Act.

(4) When one of the parents is deceased, by a

grandparent who is a parent or stepparent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent's death:

(A) the surviving parent had been absent from the

marital abode for more than one month without the deceased spouse knowing his or her whereabouts;

(B) the surviving parent was in State or federal

custody; or

(C) the surviving parent had: (i) received

supervision for or been convicted of any violation of Article 12 of the Criminal Code of 1961 directed towards the deceased parent or the child; or (ii) received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.

(c) Notice of a child custody proceeding, including an action for modification of a previous custody order, shall be given to the child's parents, guardian and custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause, may permit intervention of other interested parties.

(d) Proceedings for modification of a previous custody order commenced more than 30 days following the entry of a previous custody order must be initiated by serving a written notice and a copy of the petition for modification upon the child's parent, guardian and custodian at least 30 days prior to hearing on the petition. Nothing in this Section shall preclude a party in custody modification proceedings from moving for a temporary order under Section 603 of this Act.

(e) (Blank).

(f) The court shall, at the court's discretion or upon the request of any party entitled to petition for custody of the child, appoint a guardian ad litem to represent the best interest of the child for the duration of the custody proceeding or for any modifications of any custody orders entered. Nothing in this Section shall be construed to prevent the court from appointing the same guardian ad litem for 2 or more children that are siblings or half‑siblings.

(Source: P.A. 93‑108, eff. 1‑1‑04; 93‑1026, eff. 1‑1‑05.)

(750 ILCS 5/602)(from Ch. 40, par. 602)

Sec. 602. Best Interest of Child.

(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(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.

In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.

(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well‑being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.

(Source: P.A. 95‑331, eff. 8‑21‑07; 96‑676, eff. 1‑1‑10.)

(750 ILCS 5/602.1)(from Ch. 40, par. 602.1)

Sec. 602.1. (a) The dissolution of marriage, the declaration of invalidity of marriage, the legal separation of the parents, or the parents living separate and apart shall not diminish parental powers, rights, and responsibilities except as the court for good reason may determine under the standards of Section 602.

(b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody. Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order. In such cases, the court shall initially request the parents to produce a Joint Parenting Agreement. Such Agreement shall specify each parent's powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training. The Agreement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents. In producing a Joint Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State as expressed in Sections 102 and 602. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be conducted pursuant to the provisions of Section 605. If there is a danger to the health or safety of a partner, joint mediation shall not be required by the court. In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under the standards of Sections 602, 607, and 608.

(c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

(1) the ability of the parents to cooperate

effectively and consistently in matters that directly affect the joint parenting of the child. "Ability of the parents to cooperate" means the parents' capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;

(2) The residential circumstances of each parent; and

(3) all other factors which may be relevant to the

best interest of the child.

(d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:

(1) express agreement of the parties; or

(2) order of the court under the standards of this

Section.

(e) Notwithstanding any other provision of law, access to records and information pertaining to a child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child's custodial parent; however, no parent shall have access to the school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Illinois Domestic Violence Act of 1986, as now or hereafter amended or pursuant to the Code of Criminal Procedure of 1963. No parent who is a named respondent in an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or the Code of Criminal Procedure of 1963 shall have access to the health care records of a child who is a protected person under that order of protection.

(Source: P.A. 95‑912, eff. 1‑1‑09; 96‑651, eff. 1‑1‑10.)