Child Custody Information

The term “custody” is often confused with the amount of time a parent spends with a child. Parents can have joint custody of child with only one parent having possession of the child most of the time. Likewise, a parent can have sole custody of a child and have possession of the child for the same amount of time as the other parent. In Illinois, legal custody concerns decision-making power. Who is going to make the major decisions in the child’s life: one parent alone or both parents together?

Sole Custody:  Sole custody means that one parent makes all the major decisions related to the child.  This includes, but is not limited to, where the child goes to school, what religion the child is, who the child’s medical/dental/psychiatric/optical care providers are and what kind of medical/dental/psychiatric/optical care the child receives.

Joint Custody:  Joint custody is not for everyone.  It will be awarded only if the parents exhibit an ability to effectively and consistently cooperate in matters that directly affect the child or children.  Joint custody means that both parents make all the major decisions related to the child together.  This includes but is not limited to where the child goes to school, what religion the child is, who the child’s medical/dental/psychiatric/optical care providers are and what kind of medical/dental/psychiatric/optical care the child receives.  Except in the case of a medical emergency, a parent with joint custody cannot make a major child related decision without the approval of the other parent.  Joint custody does not mean the parties have equal parenting time.  Typically, in joint custody, one parent will be given what is called “residential custody”.  This just means that the child will reside mostly with that parent.  Normally, the residential custodian will receive child support from the non-residential custodian.

A court will determine custody based on what is in the child’s best interest.  To determine what is in the child’s best interest, the court will consider all of the following factors:

  • The wishes of the child’s parent or parents as to his/her custody
  • The wishes of the child (this factor is weighed more for older children)
  • The interaction of the child with his/her parents, siblings and any other person who may significantly affect the child’s best interest (i.e. a parent’s spouse)
  • The child’s adjustment to his/her home, school and community
  • The mental and physical health of the parents and the child
  • The physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person
  • The occurrence of ongoing or repeated abuse (i.e., physical, verbal, emotional, etc.) whether directed against the child or directed against another person
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
  • Whether one of the parents is a sex offender

The court will not consider the conduct of a parent that does not affect his/her relationship to the child. 

The non-custodial/non-residential parent is entitled to reasonable visitation rights.  Visitation means in-person time spent with the child and the parent.  In order for these visitation rights to be restricted in any manner (including supervised visitation), the visitation must seriously endanger the child’s physical, mental, moral, or emotional health.  Visitation will normally include routine visitation, holiday visitation and vacation time.  There is no “guideline” or “standard” routine visitation schedule in Illinois.  If the parties cannot agree on a visitation schedule, the court will determine a visitation schedule based on the best interest of the child.

A parent’s right to visitation is an incredibly important right that the courts are obligated to protect.  There are serious consequences when a party has willfully and without reason denied another party court ordered visitation.  Failure to pay child support as ordered does not entitle the payee parent to withhold visitation from the payor parent.  The status of child support payments does not affect the visitation rights of the non-custodial/ non-residential parent.  Likewise, a payor parent cannot withhold child support payments because the payee parent is denying visitation.  No matter how often a parent sees a child, that parent has an affirmative obligation to financially support the child.

While a parent’s right to see his/her child is a right which the court must protect, the court also has an obligation to protect the child from harm.  Visitation can be restricted, supervised or denied if a parent exercises visitation in a manner that is harmful to child.  This includes, for example, exposing the child to obvious danger during visitation time, such as driving while intoxicated with the child in the car.    

Copyright 2014 by Circuit Court of Cook County