Determining child custody is often one of the most difficult parts of going through a divorce. While most parents do not want to lose physical custody of their child, they also must decide what is best for the child in terms of physical, mental and emotional development. The law around child custody orders can be very complex, however, and there can be many misunderstandings.
Child Custody Categories
Illinois recognizes two child custody categories: joint and sole. Sole custody is when only one parent is empowered to make decisions for the child. Joint custody is when both parents must make decisions for the child. If a consensus cannot be reached, a mediator will help resolve the deadlock. Some people confuse joint custody with shared custody, which Illinois does not recognize. Shared custody is when both parents have equal parenting time. It is usually the non-custodial parent that is required to pay child support, though there are exceptions to this rule.
How the Court Decides
There are several factors that the court may determine in deciding custody. Some of the most common are:
- The parents’ preferences as to custody;
- The child’s preferences as to custody;
- The child’s place in the community, with their friends and at school;
- The presence or absence of any abuse as defined in Sec. 103 of the Illinois Domestic Violence Act;
- Whether there are any relationships with other persons in the child’s life that might make a relationship difficult.
None of these factors will outweigh the court’s mission which is to find the custody arrangement that is in the best interests of the child.
In very unusual circumstances, grandparents or other caregivers may be awarded visitation rights if they have been part of the child’s life for a certain period of time. However, any visitation awarded to them must not, under Illinois law, cut into the child’s time with their non-custodial parent.
If You Cannot Agree
If the parents cannot agree upon a custody arrangement, the court will take steps to help them reach one. Usually the next step is attending mediation. However, if that is unsuccessful, the courts in Illinois will request what is called a custody evaluation. A custody evaluator is usually a psychologist or a psychiatrist, and he or she will conduct psychological testing of both parents, and sometimes of the child, in an effort to discover what arrangement would be the most beneficial.
The court may also, in unusual cases, require your children to have a guardian ad litem – a representative who looks out for their best interests. A guardian ad litem will write a report to the court, as will the custody evaluator, and between the two professionals an agreement can usually be reached.
A Family Law Attorney Can Help
If you are in need of assistance regarding child custody matters, please contact an experienced Wheaton, Illinois family law attorney today.