Are you going through or contemplating a divorce? Despite the divorce rate hitting a record low, marriages still have a 40-50% chance of ending in divorce.
Divorce is especially hard on children. They lose their family unit, stability, and standard of living.
Even when divorce is the best decision, it can negatively affect your child emotionally, psychologically, and academically. Many parents forget divorce conflicts can be detrimental to their child’s welfare.
If you want to keep your child safe, we’re committed to helping you understand Illinois custody laws so you can prioritize your child’s wellbeing during a divorce. Our law firm is dedicated to supporting families who want to find their best way forward during life transitions.
Applicable Laws in Child Custody
To understand Illinois child custody laws, there are two main laws that apply: the Uniform Child-Custody Jurisdiction and Enforcement Act (federal) and the Illinois Marriage and Dissolution of Marriage Act (state).
Our legal system has complicated processes, so we provide a quick refresher on federal and state law.
1. Understanding Federal and State Laws
The Constitution’s Supremacy Clause holds that federal law supersedes state law. However, the 10th Amendment gives states primary decision-making for laws outside of federal purview, as long as they don’t violate the Constitution.
These state determined laws include criminal statutes, voting procedures, property law, and family law.
The federal government cannot force a state to change its laws without 1) setting a precedent through SCOTUS or 2) passing federal laws that supersede it. There are currently no federal laws for divorce or custody.
However, the federal government may want states to adopt similar laws to resolve interstate issues. These laws can be proposed and adopted by states at will, called a uniform act.
2. How This Affects Illinois Child Custody Laws
The UCCJEA is a uniform act that establishes residency and jurisdiction guidelines in child custody law. Currently, Massachusetts is the only state not to adopt this act.
Illinois state law follows the UCCJEA’s guidelines on state jurisdiction in child custody cases. Cases must be filed in the child’s home state.
The IMDMA is the family and child custody laws that only apply to cases under Illinois jurisdiction. However, other states must respect the home state’s final ruling according to UCCJEA’s provisions.
Changing residency to a state with different laws does not negate prior custody agreements. A new resident must file for case modification instead.
This makes law enforcement and child services easier for cases that cross state lines. And it prevents parents from “state shopping” during a divorce to gain an advantage over the other parent.
3. UCCJEA Home State Requirements
Certain conditions must be met before custody is filed for Illinois to be the home state:
- The child is an Illinois resident on the date of filing.
- The child now lives out of state but resided in Illinois for six consecutive months prior.
- If the child is less than 6 months old, they have resided in Illinois since birth.
These provisions are straightforward, but jurisdiction gets trickier if the child has not lived in a state for six consecutive months. Then the home state is determined by:
- The state that has a significant connection to the child and at least one parent AND
- Substantial evidence regarding the child’s best interests of care.
If more than one state has significant connections and substantial evidence, the state courts must decide between them which home state would serve the child’s best interest.
The UCCJEA also grants temporary jurisdiction in emergency situations. These situations can involve a parent and child moving to avoid mistreatment and abuse or to keep an abusive parent away during a protective order.
There are numerous other provisions and case law precedents for determining home state jurisdiction. It can be difficult for parents to know which state to file in.
To avoid your child caught up in unnecessary legal conflict, it’s important to file child custody proceedings in the right state. An experienced family law lawyer can help you figure out which state will have jurisdiction.
4. The IMDMA and Child Custody Cases
The IMDMA passed in 2016. It updated family law and custody laws to reflect the evolution of family households. It also encourages maximum parental involvement of both parents in the child’s life.
One of its most foundational changes was striking custody and visitation as legal terms, and replacing them with: Parental Allocation of Responsibility and Parenting Time.
Under the U.S. adversarial court system, even child custody arrangements get viewed as a conflict to “win.” One parent is awarded primary custody and decision-making, while the other parent is left with visitation and the possibility of limited or no direct parental involvement.
The IMDMA recognizes these conflicts create harm to a child and can possibly expose them to abuse and violence.
Its provisions seek to mitigate this conflict and grant both parents greater flexibility in sharing parental responsibilities and time with their children.
The best possible outcome for a child is having as much conflict-free parental involvement as possible. This includes cooperation between the family law attorney(s) and the parents during the divorce.
Illinois Custody Laws During a Divorce
During the divorce process, parents can request a temporary or emergency custody order until the court reaches a final custody decision.
These orders give the child stability during a divorce, especially in cases where parents have difficulty reaching an agreement. They’re also useful for significant household changes, such as one or more parents moving away.
These orders ARE NOT intended to punish a former spouse. Illinois is a no-fault divorce state. Traditional fault grounds (adultery, substance abuse, financial irresponsibility) only factor in child custody laws if it negatively affects the child.
Though it might establish a precedent for parental care, a temporary custody order will not necessarily be identical to the final custody order.
Temporary Custody Order
Divorce cases can take a long time to process. Temporary custody orders determine the parental responsibilities and parenting time during the divorce.
Temporary custody orders are not immediate. They still go through the court process of filing a motion and serving the other parent. The court then assesses what is best for the child based on the evidence both parents present during their custody hearing.
To minimize conflict in child custody disagreements, you can use mediation. Mediation acts as a communication and negotiation buffer between parents who have disagreements but still want to find an amicable solution.
Emergency Custody Order
Emergency custody order procedures are faster, to ensure a timely response to potential danger. The court only considers evidence involving the emergency.
If a child has been taken out of state and is abandoned or in danger, the UCCJEA allows that state to issue an emergency custody order under the emergency jurisdiction guidelines.
For Illinois, parents can file either an emergency order of protection (restraining order) or an emergency custody order. The only grounds for filing are immediate dangers to the child.
When To Seek a Temporary/Emergency Custody Order
There are situations when temporary custody is the right-minded solution. You can bring everyone to the table and decide how to share parental time and responsibilities in a compassionate manner for the child.
There are also situations where a child may be unsafe, or you’re treated unfairly. A temporary custody order will protect your child and your parental rights.
1. Prevent Conflict
Some families recognize they’ll have disagreements, but want to resolve those disagreements in a healthy, mutually cooperative way. A parenting plan minimizes stress and helps prevent a high-conflict divorce.
High-conflict divorces are devastating to children. It gives them mental and emotional health problems and persistent fear of abandonment. Children in a high-conflict divorce are affected similarly to children who experience abuse and neglect.
Research also shows having a strong relationship with your child will not always protect them from conflict stress. The best protection is avoiding conflict and settling disagreements respectfully.
2. Moving Households
Divorces shuffle families around. Some parents move out of state or back in with their own parents. Some may even move to a different country.
Even when the proximity remains close, it’s a big change for children. They may have to adjust to new schools, new neighborhoods, and unfamiliar places and people.
Working out parental time and responsibility during a move is a volatile situation. You have moving stress on top of divorce stress.
It may be hard to prioritize what’s fair and best for your child when you’re focused on time, money, the divorce, and moving.
You may also be worried about your former spouse moving away with the child, resulting in limited to no contact. A temporary custody order will help resolve these stresses and fears.
3. Your Former Partner is Withholding Contact
Unfortunately, some parents will use their child as a pawn during a divorce.
Your former spouse may threaten to withhold your parenting time or actively prevent you from seeing or talking with your child just to punish you, not because it’s in the child’s best interest.
A temporary custody order will require them to present evidence for why they denied parental time. If you are a fit parent, and they cannot prove your presence is harmful to the child, they cannot legally withhold the child from you.
4. Risk of Child Abduction
Divorces are unpredictable and potentially explosive. People become capable of actions they may never take otherwise.
Along with your former spouse’s unpredictable nature, you may have to worry about the response of other immediate family members, such as:
- Their new partner or spouse
- Grandparents and great-grandparents
- Aunts and uncles
- Brothers and sisters
While child abduction and kidnapping are relatively rare in the U.S., over 90% of abduction cases involve a parent or family member. According to FBI statistics, only around 300-380 children are kidnapped by strangers each year, compared to over 2,000 for familial abductions.
A temporary custody order gives you legal recourse if your child is abducted. The UCCJEA standardizes child custody law to include enforcing child custody orders even if the child is moving across states.
Law enforcement and the courts can more quickly determine a custody order violation than working through informal agreements.
When NOT To Seek a Custody Order
Divorces can be especially contentious if they involve one spouse mistreating the other. Adultery is among the most common causes for divorce in the U.S., along with financial conflicts, lack of equality, and lack of intimacy.
Abuse is another common reason for divorce. If your spouse is abusive, filing for a temporary custody order may escalate conflict and put your child and/or you in danger.
Your child’s safety is even more important than custody law. Your family law attorney and a domestic violence hotline or shelter can help you decide the best course of action.
1. Retaliation and Punishment
You may be justifiably angry at your former spouse for their betrayal and mistreatment, and you have the right to feel that way.
However, it is important to remember retaliation during a divorce will hurt your child much, much more than your former spouse. And far from facing justice, your former spouse may use your attempts to punish them against you in court.
Seeking a temporary custody order only to withhold or minimize contact as punishment is unfair to your child. It also creates unnecessary conflict.
The court will quickly determine if you have no case for taking this action and may factor it against you in their final custody ruling.
2. Danger to Child and Yourself
Illinois defines domestic violence as physical violence or threats, harassment, and interference in personal liberties.
Under Illinois family law, you can seek a temporary or emergency custody order because a former spouse is abusing your child. But you must do so carefully and safely.
Studies and statistics consistently show the most dangerous time for domestic violence victims is when they leave. In one study, over 83% of domestic homicide victims were separating or about to separate from their abusers.
Always make certain you can file an emergency custody order from a safe place first.
Parental Allocation of Responsibility and Parenting Time
A temporary custody order will follow the general guidelines of your final custody order. Each parent must have a parenting plan, either submitted separately or jointly with the other parent.
The parenting plan outlines how you want to share parental responsibilities and parenting time.
The IMDMA’s parental allocation of responsibility and parenting time follow the general concepts of legal custody and physical custody. But it allows for more flexible and detailed arrangements.
Parental responsibilities include significant decision-making and parenting time. Parenting time is when caretaking functions are performed.
Under Illinois child custody laws, caretaking functions include, but are not limited to:
- Nutritional needs
- Bedtime and wake-up routines
- Care during sickness or injury
- Child’s personal hygiene (washing, grooming, dressing)
- Playing with child
- Extracurricular activities
- Child’s physical safety
- Developmental needs (motor/language skills, toilet training, self-confidence, maturity)
- Discipline and child’s behavioral control
- School-related responsibilities (attendance, remedial/special classes, school communication, homework)
- Interpersonal relationships (peers, siblings, family members)
Medical health care needs
- Moral and ethical guidance
- Alternative care (child care providers and facilities)
When strategizing your parenting plan, you will share decision-making for the best caretaking methods, and how and when this caretaking will be performed.
For example, you may think it’s best your child attends a certain school. Your plan is to drop your child off at this school, but have the other parent pick them up and take them to extracurricular activities.
Your former spouse may or may not agree with this plan. You can seek mediation to reach an agreement.
Whether you agree or disagree with each other, the court will ultimately decide if this plan is best for the child based on the IMDMA’s guidelines.
1. Parental Allocation of Responsibility
Parental allocation of responsibility prioritizes the child’s best interests. It doesn’t automatically assume it’s best to have an exact 50/50 split or one parent making most of the decisions.
Only significant decisions are part of parental responsibilities. Whichever parent has the child, can make non-significant decisions on their own.
You don’t need to consult the other parent on what to serve for dinner, for example, as long the child’s nutritional needs and dietary considerations are being met.
But you may need to agree with the other parent on what those nutritional and dietary needs are to keep your child healthy. And if you feed your child chicken nuggets every night for a month, they may take you back to court.
The main areas allocated are:
- Extracurricular activities
Each area can be jointly or separately decided. The court may determine only one or both parents make the significant decisions.
Even if both parents agree completely, court approval is not automatic. The court will weigh multiple factors for consideration in their final judgment.
Factors for Consideration
The factors for allocation may consider physical custody, but are not necessarily tied to physical custody like previous child custody law.
These factors include, but aren’t limited to:
- The child’s wishes
- The child’s needs
- The child’s adjustment to home, school, and community
- Any relevant mental and physical issues
- Cooperation and conflict between the parents
- Past parental participation
- Any prior agreements
- The parents’ wishes
- The distance between households
- Any relevant restrictions
- Whether or not parental involvement is encouraged
- Violence or threats of violence against the child
- Abuse present in the household
- Sex offender statuses
- Any factor the court finds relevant
By weighing all these factors, the court will protect the child from situations where one parent exerts undue influence over the other. It will also protect the child when neither parent has the child’s best interest in mind.
2. Parental Allocation of Parenting Time
After determining who will make the decisions for parenting responsibilities, you will work out shared parenting time.
In addition to parental responsibility factors, parental time factors include:
- The division of caretaking 24 months prior to filing
- The division of caretaking since birth (child less than 2 years)
- The willingness of the parent to consider the child’s needs before their own
- Military deployments
- Any other relevant factors
Parenting time can be difficult to coordinate if both parents work, live far away from each other, or have to travel consistently. The court will weigh who has done most of the caretaking prior to the divorce, and who will do most of it after.
Their consideration is not based on gender. A dad’s caretaking time carries as much weight as a mother’s caretaking time.
Illinois child custody laws also assume both parents are fit unless otherwise proven. If your former spouse is an unfit parent, you must prove it under certain criteria, including:
- Criminal conviction of insanity
- Physical abuse
- Extensive felony record
Your child’s safety is always paramount to the court. If you need to prove your former spouse is unfit, a family law lawyer can help you bring evidence to the court before submitting your parenting plan.
A Better Way Forward For Your Family
Illinois custody laws can be complicated, but their intent is to keep children as safe and happy as possible.
You don’t have to be an expert in family law to keep your child safe. Our law firm can provide you with a tough but compassionate family law attorney that has the experience and expertise you need.
You can reach out to us by phone, schedule a consultation, or get answers to general inquires on our website. At STG Divorce Law, we always have a seat at the table for you.