Illinois Illinois

Child Custody Law

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 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

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