Child custody can be one of the most contentious parts of an Illinois divorce, particularly if you and your spouse don’t see eye to eye.
So if you’re looking for an overview of Illinois child custody laws, you’ve come to the right place. In this guide, you’ll learn:
- The types of child custody in Illinois
- How custody is determined
- The criteria courts use to determine what’s in a child’s best interests
- What details to include in a parenting plan
- How modifying custody or visitation works in Illinois
- Answers to common questions about Illinois child custody
What are the Types of Child Custody in Illinois?
The term “child custody” does not formally exist in Illinois anymore. In 2016 the Illinois legislature rewrote the Illinois Marriage and Dissolution of Marriage Act to strike the word “custody” entirely out of the Act. Instead, the terms “allocation of parental responsibilities: decision making” and “allocation of parental responsibilities: parenting time” have replaced the phrase “custody” throughout the Act.
Instead of describing a parent’s relationship with a child as to custody, the Illinois legislature now uses parenting time and responsibility.
Illinois also changed legal custody to “decision-making responsibility,” and visitation is now known as “parenting time.”
Decision-making responsibility gives one or both parent the authority to make important decisions concerning how to raise a child. A legal custody holder may make decisions about medical, education, and the child’s religious upbringing. When both parents share decision-making responsibility, it is called joint decision-making responsibility. Barring extenuating circumstances, it is more common for a judge to award joint custody instead of sole custody to a single parent.
If you and your former spouse have been awarded joint legal custody and subsequently disagree on a primary issue concerning how to raise your child, provisions in the parenting plan should give you enough direction to resolve the disagreement. However, family law judges expect maximum parental cooperation and involvement in the child’s life.
Physical custody is known as parenting time and is a legal order determining where the child is physically spending time. Even when parents share decision-making responsibilities, Illinois law usually designates only one parent as the primary custodial or residential parent. This is where a child usually lives and spends most of their time.
In some cases, parents may share joint parenting time with their children. In these cases, parents spend virtually the same amount of time with the child. When parents with equal shared parenting time have similar incomes, a court may not require either party to pay child support.
Joint physical custody arrangements typically work best when divorced parents get along well and live nearby each other, which minimizes the stress of constantly uprooting a child from a consistent environment.
How is Custody Determined in Illinois?
Parenting time is a schedule of each parent’s time with the children and is part of a parenting plan that must be created and approved by the courts. If parents can’t agree on the schedule, the family court judge will assign the parents a schedule based on the “child’s best interests.”
Whether determining parenting time or decision-making responsibilities, Illinois judges make their custody determinations based on what is in your child’s best interests.
The Uniform Child Custody Jurisdiction and Enforcement Act
A law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets the rules on which the court has jurisdiction to avoid conflicting custody opinions from courts in different states. The UCCJEA determines which state is the child’s “home state” for custody matters. Courts in the home state have jurisdiction over custody litigation involving that child and are the only ones that can hear a custody case for that child.
Illinois custody laws give the court jurisdiction to hear a child custody case if:
- the child has lived in Illinois for the last six months (or since birth if less than six months old)
- the child lives out of state but has lived in Illinois for the past six months, and one of the child’s parents still lives in the state, or
- no other state is the child’s home state (or the child’s home state has declined to exercise jurisdiction in deference to Illinois), and either (1) the child and at least one parent have significant connections with Illinois, and (2) substantial evidence exists in Illinois concerning the child’s care, protection, training, and personal relationships.
Mediating Child Custody
Some judges may decide parents should attend court-ordered mediation when they can’t agree on a custody arrangement. The certified mediator is a neutral third-party attorney, social worker, psychologist, or therapist.
These sessions are non-binding and confidential and work in a collaborative framework to help parents better communicate wants and goals to reach an agreement.
Can a Judge Order Supervised Visitation or No Visitation?
If a judge determines someone is an unfit parent, they can decide that the parent will get no physical custody. In lesser degrees of being unfit, the judge can order supervised visits when a predetermined person (i.e., a social worker, trusted family members, or some other agreed-upon person) is also present.
Can Grandparents Apply for Child Custody?
Grandparents can petition Illinois courts for visitation. They can only do this in specific circumstances, such as if the parents unreasonably deny the grandparents visitation. The burden of proof falls on the grandparents to prove the denial is unreasonable.
What is “The Best Interests of the Child” Standard?
Under Illinois law, all decisions regarding parenting time are governed by the child’s best interests. This standard means when the court determines parenting time, it must consider many factors, including:
- The wishes of each parent
- The wishes of the child
- The amount of parenting time each parent had in the 24 months before a custody petition was filed
- Prior custody arrangements between the parents
- Previous courses of conduct from both parents
- The child’s interactions with each parent, sibling, and other significant people
- The child’s adjustment to home, school, and community
- The mental and physical health of everyone involved
- The child’s needs
- The distance between the parents’ residences
- The child’s schedule
- The parent’s ability to cooperate
- The sex offender status of the parent and anyone in their home, including the status of related treatments
- The terms of military family-care plans a parent must complete before deployment; and
- Any other relevant factor
The court does not typically restrict parenting time unless you can prove that it is likely parenting time would seriously endanger your child’s physical, mental, moral, or emotional health.
Also, not every parent who receives parenting time has the right to make significant decisions for their child. However, each parent is solely responsible for making routine and emergency healthcare decisions for the child during their parenting time.
A court also decides on a legal custody arrangement of the child based on the child’s best interest and using the following factors:
- The needs of the child
- The wishes of the child
- The wishes of each parent
- Any previous agreements about decision-making
- Each parent’s past participation in making significant decisions
- The mental and physical health of the parties involved
- The child’s adjustment to their new circumstances: school, home, community, etc.
- The ability of both parents to cooperate and make decisions for their child
- The ability of a parent to support a positive relationship with the other parent
- The distance between the parents’ homes and its effect on their ability to cooperate
- Whether a parent endangered the child’s health mentally, morally, or physically
- Any acts or threats of physical violence from a parent which are directed at the child
- Any abuse of the child or another member of the child’s household
- Whether one of the parents is a sex offender, the nature of the offense and any resulting treatment
- Any other factor determined to be relevant by the court
What is the Right of First Refusal?
When both parents have parenting time, the court has the option to award the right of first refusal. The right of first refusal gives parents the option to watch or babysit the child on the other parent’s days as the need arises, such as if the parent has a work commitment or is going out socially.
The right of first refusal is not given in every case, and there can be stipulations such as transportation requirements or a notification timeline.
What is a Parenting Plan?
Illinois law allows married and unmarried parents to petition the court for the allocation of parental responsibilities. The wording is a bit different, but essentially this is establishing a parenting plan.
You can initiate proceedings to allocate parental responsibilities by filing for the dissolution of a marriage (married parents) or by filing a petition to allocate parental responsibilities (unmarried parents).
You and your spouse have 120 days from the date of filing the petition to file a proposed parenting plan. You can file this plan jointly or separately, and it must include decisions regarding:
- Allocation of significant decision-making parental responsibility
- Living arrangements
- Parenting time
- A mediation provision for any proposed reallocations of parenting time
- A mediation provision regarding the terms of allocation of parental responsibilities
- Rights to access healthcare records; school records, extracurricular records, reports, and schedules
- Designation of the parent with majority parenting time
- The child’s residential address for school enrollment purposes
- The residential address, phone number, and employment information for each parent
- A requirement for 60 days’ notice for changes of address
- Provisions for notifying the other parent about emergencies, healthcare, travel plans, and other significant child-related matters
- Provisions for communicating with the child during the other parent’s time;
- Provisions to address future relocations
- Provisions for future modifications of the parenting plan when specific events happen;
- Provisions for a parent’s right of first refusal
- Any other provisions regarding the child’s best interests or fostering cooperation between the parents.
The court may require you to attend mediation to formulate a parenting plan before a judge assumes the duty of allocating responsibilities. Divorcing parents can submit their agreed-upon parenting plan any time before a judgment of dissolution of marriage.
Modifying Custody or Visitation Orders in Illinois
There is a higher standard to modify a child custody order if you ask for a change within the first two years after the order has been implemented.
To modify an order within two years of the initial order, you must file an affidavit stating that the child’s current situation puts your child’s emotional, physical, mental, or moral health in danger. Illinois courts will only modify if your children face “serious endangerment.”
If a child custody order has been in place for two years or more, the courts will employ a different standard using a two-part test to determine if modifying the current parenting order is necessary.
- The court will determine whether there has been a substantial change of circumstances that directly affect your children since the last final child custody order was entered; and
- The court will evaluate whether the child custody order is in the best interest of your children.
When a parent does not comply with an already agreed-upon parenting schedule, an Illinois court may take steps to enforce the original order rather than make any modifications.
Illinois Child Custody FAQs
What are the Illinois custody laws for unmarried parents?
Unmarried parents have almost the same rights and responsibilities as married parents in Illinois. However, if you’re unmarried and seeking custody of your child, you must first establish a parent-child relationship.
A parent can establish a parent-child relationship in the following ways:
- Giving birth to the child (unless there was a surrogacy arrangement)
- A court order
- Adopting the child
- A valid gestational surrogacy arrangement
- By marriage or civil union
- A voluntary acknowledgment of paternity.
You can seek custody of the child after the parent-child relationship has been established,
Does shared custody impact child support in Illinois?
Child support in Illinois is based on a complicated calculation that accounts for both parents’ incomes.
Part of the calculation is determining how many overnights each parent has. If each parent has more than 146 overnights, child support calculation in Illinois changes dramatically.
Per Illinois child custody law, “If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation.”
Essentially, child support is reduced by half if a parent has a 60/40 or more share of parenting time. Parents practicing joint 50/50 custody in Illinois usually waive child support and simply divide the children’s expenses 50/50 or proportionately to their incomes.
Does a child have a say in custody matters in Illinois?
It depends. A court is not obligated to let a child have a say in who they want to live with.
However, the court will consider what the child wants, no matter how old they are. The older or more mature a child is, the more weight their opinion will have. That preference will carry even more weight when it’s based on sound reasoning, such as a desire to remain with friends, to continue attending the same school, or to remain in the same environment.
The bottom line is that a child’s best interests will determine the outcome of a custody case.
Does Illinois have a parental gender preference in child custody cases?
No. The courts do not favor either parent based on their gender. Again, the overriding guiding principle when deciding legal and physical custody of the child is what is in the child’s best interest.
Can a custodial parent move to another part of Illinois or out of state?
Yes, but there is a specific procedure that must be followed. A custodial parent can’t move a child out of Illinois without a court order. The parent who wants to relocate with the child out of state bears the burden of proving that the move serves the child’s best interests.
A court must consider the following factors in determining whether a proposed move to another state is in the best interests of the child:
- whether the move will enhance the general quality of life for both the custodial parent and the child
- whether the custodial parent’s proposed move is a ruse to frustrate or defeat the other parent’s visitation rights with the child
- the motives of the noncustodial parent in resisting the removal
- the visitation rights of the noncustodial parent
- whether a reasonable visitation schedule can be achieved if the move is allowed
The parent seeking to move must prove that it is in the child’s best interests, not just the parent’s best interests.
The moving parent must let the other parent know and file a notice with the clerk of courts at least 60 days before the parent intends to move. If the moving parent gets approval from the non-moving parent, they are allowed to move. If the non-moving parent won’t sign the notice, then the moving parent has to file a petition with the court to have the matter decided by a judge.
As part of the review, a judge will want to know about housing arrangements, job opportunities, neighborhood and school quality, available activities for the child, and a well-considered plan to keep the child in touch with the left-behind parent.
A custodial parent may remove the children to another part of the state without a court order unless there is a written agreement to the contrary. However, because this will bring about a significant disruption in the child’s relationship with the other parent, this could be considered a material change in the child’s circumstance and turn into the foundation of a petition for custody modification.
A permanent relocation is different than a vacation. Parents are free to take the child out of state on a temporary vacation as long as the court order allows it, and the traveling parent provides the other parent with the address and telephone number where the child can be reached while out of state.