Mothers get custody in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Why Is Custody Usually Awarded To Women In Illinois?

Mothers get custody in Illinois

If you do a quick survey of divorce parents with children in Illinois, you will notice something very quickly: the women usually have more parenting time.

Aren’t Illinois child custody laws supposed to be blind to gender? Why do women typically have custody of the children after an Illinois divorce?

Child Custody By Agreement In An Illinois Divorce

Custody” as a term no longer exists in Illinois. Instead, it is split into the twin concepts of “parental decision-making” and “parenting time

Before an Illinois divorce court even gets involved in allocating parenting time and parental responsibilities, the Illinois Marriage And Dissolution Of Marriage Act requires both parents to disclose their desired parenting schedules and allocation of parental decision-making responsibilities via a proposed parenting plan.

“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)

Hopefully, the parents can compare their respective parenting plans, convene amongst themselves over whatever differences are revealed and, possibly, come to an uncontested child custody agreement.

Often, offering a woman or a man an extra day a week or every two weeks is enough to satiate someone’s desire to “have custody.” But more often…a parenting plan will be met by shock and disgust by the other parent.

If an initial agreement cannot be reached, the parties to the Illinois divorce must get help from a third-party mediator.

“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)

The mediator will then explain the law to both parties and how cumbersome and expensive litigating the custody of the children will be…especially when there are only a few minor disagreements.

If the parties remain at loggerheads…they must proceed to litigation to finally determine child custody of the children.

How An Illinois Divorce Court Determines Child Custody

Failure to arrive at an agreement after mediation means that an Illinois domestic relations court must make a parenting plan for the parties via a trial determined by the Illinois Rules Of Evidence.

“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)

The court will need to make decisions regarding both who makes the decision for the children and who will spend time with the children.

“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)

AND

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)

As you can see, time and decision-making are both determined by what is in the child’s best interests.

The Illinois Marriage and Dissolution of Marriage Act provides explicit standards for what the courts shall consider when deciding the children’s best interests.

“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)

AND

“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)

A list of factors is then provided for a court to make decisions regarding both. For the most part these factors are 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 two factors which an Illinois divorce court can consider for parenting time purposes that often favor women/mothers.

“[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)

If the woman was a homemaker before the divorce (which must have been by agreement) or the woman had an especially nurturing relationship with the child, the woman can expect to be given more time with the child based on those factors (the other factors notwithstanding).

Finally, please be aware that nothing in the statute states a presumption of equal, 50/50 allocation of parenting time or parental decision-making.

“[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

“Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)

Equal child custody is not the default in Illinois. If you want equal child custody…you must fight for it.

Who Really Determines Child Custody In An Illinois Divorce Case

These factors are too numerous, detailed and contextual for an Illinois divorce judge to individually and adequately investigate. The courts defer to Guardian Ad Litems and Child Representatives to investigate and report on the two parents, two homes and the children’s needs.

“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.

Guardian Ad Litems and Child Representatives are attorneys who represent the best interests of 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)

Illinois divorce judges usually adopt a Guardian Ad Litem or Child Representative’s recommendations entirely. If you disagree with the recommendations, you can still challenge those recommendations in court because 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).

Guardian Ad Litems issue a report and can be cross-examined in an open court over the contents of their report.

Child Representatives are bound by the same rules of evidence that other lawyers are and must formally present evidence to verify and corroborate their recommendations.

What Custody Really Is In An Illinois Divorce

Practically, parental decision-making isn’t that important. Once parenting-time is determined, the parent exercising parenting-time has free reign over almost all decisions which happen during that parenting time.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.” 750 ILCS 5/602.5(d)

Decisions about education, extracurriculars and religion will impact that parenting time because each decision decrees that a child must be in a certain place at a certain time. So, special care should be made when allocating those decisions.  

Why Are Women Generally Awarded Custody Of The Children In Illinois?

None of the myriad of factors and investigation techniques listed above mention sex or gender. So, how is it that women are often the primary parent after a child custody negotiation or trial?

Basketball player Tarence Kinsey didn’t know it but he could have been talking about divorce instead of basketball.

“Everybody around this time of year is physically tired. It just depends on the team that’s most mentally focused. I think right now, whoever wants it more at that point in time, that’s who’s going to win.”  – Tarence Kinsey

Women simply want custody of the children more! Do not hate the game! Hate the player! (Don’t really hate them, they’re the parent of your child)

If you believe that there is some kind of gender discrimination in regards to your divorce you can politely bring the Illinois Human Rights Act to the attention of the court.

“It is the public policy of this State… To secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her…sex.” 775 ILCS 5/1-102(A)

Don’t expect to go too far if you’re accusing a judge of violating your “human rights.” A polite reminder that neither sex nor gender are included in the factors upon which a judge can base their allocations of parenting time and allocation of parental responsibilities should be sufficient.

Finally, there is a biological consideration that definitely tips the scales in the favor of women during a divorce: breast feeding.

No judge is going to order that a child not be breastfed. No judge is going to order a woman to package her breast-milk for her estranged husband’s use. So, a breast-feeding mother has a monopoly on the child’s time for as long as she is breast-feeding the child.

However, if breast-feeding continues beyond 18 months…the mother’s judgment is going to be called into question which will affect child custody.

If you are a man who is worried about a child custody issue, contact me. There are ways to beat the odds against women usually getting custody of their children in Illinois.

If you are a woman who wants custody of her children, I can tell you more about how to use the factors to your advantage.