Child custody used to be an all-encompassing concept in Illinois law. You either had custody of your child…or you didn’t. If you did not have sole custody or no custody at all maybe you could agree to joint custody. Child custody in Illinois no longer functions as an all, nothing or joint concept.
Child custody is no longer an operating term in the Illinois Marriage and Dissolution of Marriage Act.
“Custody” is a term of art, and a person has “custody” only if he or she provides the care, control, and maintenance of a child pursuant to a court order.” DEPT. OF HEALTHCARE AND FAMILY v. Arevalo, 68 NE 3d 552 – Ill: Appellate Court, 2nd Dist. 2016
Parenting time determines who the child spends time with and when the child will be with each parent.
Parental decision-making is who makes decisions for the child.
How do these child custody concepts; parenting time and parental decision-making get decided in an Illinois divorce or parentage matter?
“A court may order a temporary allocation of parental responsibilities in the child’s best interests before the entry of a final allocation judgment. Any temporary allocation shall be made in accordance with the standards set forth in Sections 602.5 and 602.7: (i) after a hearing; or (ii) if there is no objection, on the basis of a parenting plan that, at a minimum, complies with subsection (f) of Section 602.10.” 750 ILCS 5/603.5(a)
“A temporary order may include provisions for the allocation of parental responsibilities and parenting time as provided by the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 46/501
Temporary parenting time and temporary parental decision-making are supposed to be decided using the same factors as a permanent order for parenting time or parental decision-making.
It is not realistic to expect an Illinois divorce or parentage court to determine a temporary schedule based on the limited evidence that can be presented in a temporary motion. So, the court usually just maintains the status quo after a temporary hearing.
“A preliminary injunction [also known as a temporary order] is merely provisional in nature, its office being merely to preserve the status quo until a final hearing on the merits. The status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy.” In re Marriage of Schwartz, 475 NE 2d 1077 – Ill: Appellate Court, 1st Dist. 1985 (Citations Omitted)
This means that if you leave the marital home and leave your children in the marital home, you can expect your children to stay in the marital home without you until further investigation. If you had taken the children with you and months had passed before a court filing, you can expect to keep your children for a foreseeable amount of time.
This bias towards preserving the status quo will encourage whomever the status quo benefits to file a temporary motion for parenting time and parental decision making.
All temporary orders are temporary.
“A temporary order…does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding” 750 ILCS 5/501(d)(1)
Sooner or later a final order will be entered which will erase the temporary order from existence.
A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)
How do we get an Illinois divorce or parentage court to make that final child custody determination?
The Proposed Parenting Plan In An Illinois Divorce
It is important to know what parenting time and decision-making authority both parents are requesting of each other.
Illinois requires that both parents issue proposed parenting plans to each other in order to clarify each other’s goals.
“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)
It is very likely that there will be little or no disagreement between the parents regarding the parenting plan. If that’s the case, custody is determined and all the parents need to do is sign an agreed parenting plan and submit the agreement to the court for approval.
“The parenting plan must be in writing and signed by both parents. The parents must submit the parenting plan to the court for approval within 120 days after service of a petition for allocation of parental responsibilities or the filing of an appearance, except for good cause shown. Notwithstanding the provisions above, the parents may agree upon and submit a parenting plan at any time after the commencement of a proceeding until prior to the entry of a judgment of dissolution of marriage. The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child.” 750 ILCS 5/602.10(d)
If an agreement cannot be reached immediately, the parents must go to mediation.
Mediation And Child Custody In Illinois
“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan” 750 ILCS 5/602.10(c)
Mediation will not be necessary if either parent has engaged in behaviors that render any further communication toxic. Mediation is not required if“past or present family violence or abuse, mental or cognitive impairment, alcohol abuse, or chemical dependency. Family violence or abuse includes harassment, intimidation, and interference with personal liberty.” Cook County Court Rule 13.4(e)(i)(b)(3)
The cost of mediation will be determined by the court.
“Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.” 750 ILCS 5/602.10
The expense of the mediation “shall be borne by the parties and may be assessed by the court as it deems equitable without prejudice and are subject to reallocation at the conclusion of the case.” 750 ILCS 5/501(e)
Just because you go to mediation doesn’t mean you have to agree.
“Parties and their representatives are required to attend mediation sessions, but are not compelled to reach an agreement.” Cook County Court Rule 13.4(e)(i)(a)
If the parents cannot agree on child custody at mediation, then they must proceed to court to have an Illinois judge determine who their children will spend time with and who will make decisions for the children.
Guardian Ad Litems And Child Representatives Help Determine Child Custody
When there is a disagreement about child custody, an Illinois court must investigate the minute details of a family’s life. This is a herculean task that no judge overseeing a thousand case docket could manage. So, the court typically appoints a guardian ad litem or child representative to appropriately investigate the family dynamic.
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates” 750 ILCS 5/506.
The guardian ad litem or child representative represents the child/child’s best interests. In doing so, their initial task is to investigate the child’s best interests and the current family dynamic
“Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.” Ill. Sup. Ct. R. 907(b)
This guardian ad litem or child representative will be conducting a lot of interviews to determine what schedule and parental decision-making would be best for the children.
“As soon as practicable, the child representative, attorney for the child or guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(c)
The point of this investigation is for the guardian ad litem or child representative to make final recommendations to the court as to which parent should have custody of the child.
“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)
The child representative does not issue a report or even an opinion but, rather, offers evidence and argument like any other attorney would.
“The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments.” 750 ILCS 5/506(a)(3)
While the guardian ad litem or child representative is investigating the case, they shall have the power to recommend treatment, counseling or anything else that may be of benefit to the child and/or family.
“The child representative, attorney for the child or guardian ad litem shall take whatever reasonable steps are necessary to determine what services the family needs to address the custody or allocation of parental responsibilities dispute, make appropriate recommendations to the parties, and seek appropriate relief in court, if required, in order to serve the best interest of the child.” Ill. Sup. Ct. R. 907(d)
At every step, the guardian ad litem or child representative will do their best to try to bring the parents to an agreement as to child custody.
“The child representative, attorney for the child or guardian ad litem shall determine whether a settlement of the custody or allocation of parental responsibilities dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child” Ill. Sup. Ct. R. 907(e)
If the parents cannot agree during the course of the guardian ad litem or child representative’s investigation, child custody will finally be decided by a judge.
Even a guardian ad litem or child representative’s strong recommendation should not dissuade a parent from proceeding to trial because, in the end, the judge “is the ultimate fact finder in a child custody case, not the expert witness.” In re Marriage of Saheb & Khazal, 377 Ill. App. 3d 615, 628 (2007).
A Child Custody Trial In Illinois
Loosey goosey recommendation and expanding time schedules are no longer the rule once a child custody trial is scheduled.
“The court shall conduct a trial or hearing to determine a plan which maximizes the child’s relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. The court shall take the parenting plans into consideration when determining parenting time and responsibilities at trial or hearing.” 750 ILCS 5/602.10(g)
Illinois courts will consider evidence per the Illinois Rules of Evidence and will apply that evidence to the factors allowed to be considered per the Illinois Marriage and Dissolution of Marriage Act.
Each parent and the guardian ad litem or child representative will present their evidence to the court and the court will weigh that evidence to determine the best interests of the child. Everything else flows from the concept of the best interests of the child.
“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)
Best interests are determined by a myriad of factors outlined in the Illinois Marriage and Dissolution of Marriage Act.
“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 602.5(c)
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 602.7(b)
The factors considered for parenting time and parental decision-making are almost all identical.
- Wishes of the child. 750 ILCS 5/602.5(c)(1) and 750 ILCS 5/602.7(b)(2)
- Child’s adjustment to his or her home. 750 ILCS 5/602.5(c)(2) and 750 ILCS 5/602.7(b)(6)
- The mental and physical health of all individuals involved. 750 ILCS 5/602.5(c)(3) and 750 ILCS 5/602.7(b)(7)
- Wishes of the parents. 750 ILCS 5/602.5(c)(7) and 750 ILCS 5/602.7(b)(1)
- The child’s needs. 750 ILCS 5/602.5(c)(8) and 750 ILCS 5/602.7(b)(8)
- The distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement. 750 ILCS 5/602.5(c)(9) and 750 ILCS 5/602.7(b)(9)
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. 750 ILCS 5/602.5(c)(11) and 750 ILCS 5/602.7(b)(13)
- The physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household. 750 ILCS 5/602.5(c)(12) and 750 ILCS 5/602.7(b)(11)
- The occurrence of abuse against the child or other member of the child’s household. 750 ILCS 5/602.5(c)(13) and750 ILCS 5/602.7(b)(14)
- Whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated. 750 ILCS 5/602.5(c)(14) and 750 ILCS 5/602.7(b)(15)
- Any other factor the court expressly finds to be relevant. 750 ILCS 5/602.5(c)(15) and 750 ILCS 5/602.7(b)(17)
There are additional factors that a court can consider exclusively for the purposes of parental decision making.
- “[T]he ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making.” 750 ILCS 5/602.5(c)(4)
- “[T]he level of each parent’s participation in past significant decision-making with respect to the child.” 750 ILCS 5/602.5(c)(5)
- “[A]ny prior agreement or course of conduct between the parents relating to decision-making with respect to the child. 750 ILCS 5/602.5(c)(6)
- “[W]hether a restriction on decision-making is appropriate under Section 603.10” 750 ILCS 5/602.5
This last factor basically requires a court to make findings that a lack of parental decision-making authority must be based on the court finding that “if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)
An Illinois court can decide parenting time based on some additional, individual factors as well.
- “[T]he amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth” 750 ILCS 5/602.7(b)(3)
- “[A]ny prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child” 750 ILCS 5/602.7(b)(4)
- “[T]he interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests” 750 ILCS 5/602.7(b)(5)
- “[W]hether a restriction on parenting time is appropriate” 750 ILCS 5/602.7(b)(10)
- “[T]he willingness and ability of each parent to place the needs of the child ahead of his or her own needs” 750 ILCS 5/602.7(b)(12)
- “[T]he 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; and” 750 ILCS 5/602.7(b)(16)
These are a lot of factors to consider when determining child custody in Illinois. An Illinois divorce or parentage “court shall consider all relevant factors, including, without limitation” 750 ILCS 5/602.7
What obligation does a court have to go into detail regarding all thirty two (32) factors when making the court’s final child custody decision?
An Illinois trial court just needs to acknowledge that they considered all the parenting time and parental decision-making factors. It does not need to make a written finding for each individual factor.
If a “trial court specifically stated it considered “all evidence” including the guardian ad litem’s report, which analyzes all of the factors in depth, we presume the trial court properly considered all statutory factors.” In re Marriage of Whitehead, 97 NE 3d 566 – Ill: Appellate Court, 5th Dist. 2018
In the end, do not expect an Illinois court to award 50/50 parenting time or to divide the decision-making authority equally. Illinois does not determine child custody like splitting a cookie in order to share.
“Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)
“[C]ourts have traditionally viewed 50/50 joint parenting time with caution” and “[i]n cases where the evidence clearly showed that parents had too much animosity to be able to cooperate, 50/50 arrangements have been set aside.” In re Marriage of Virgin, 2021 IL App (3d) 190650
Each divorce or parentage trial will be handled individually with no default assumptions. Your child’s custody will largely be determined by how well you present evidence and argue the 32 factors.
It is going to get ugly when the 32 factors are discussed. You will need a cool head to take the criticism that will inevitably come your way because “[i]n custody cases, seldom is either parent shown to be perfect.” In re Marriage of Apperson, 215 Ill. App. 3d 378, 383 (1991)
Determining child custody in Illinois is a long and often painful process. Often, the process is worth the pain to keep your child safe or to keep you in your child’s life. If you’re struggling in a child custody dispute in Illinois, contact my Chicago, Illinois family law firm to discuss your options with an experienced Chicago divorce attorney.