Illinois Lawyer Referrals and Legal Guidance
Statutes Used to Adjudicate Child Custody in Illinois
The following statutes are used in determining custody of a child in Illinois. In general, no matter if you are a father or a mother, the statutes state that the best interests of the child govern. That doesn't mean the child gets to choose, it means the judge will determine what the child's best interests are and will balance that with the parents’ desires.
Illinois Marriage and Dissolution of Marriage Act governs if you are dissolving your marriage or legally separating. With respect to child custody, the statute states the following:
The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
- the wishes of the child's parent or parents as to his custody;
- the wishes of the child as to his custodian;
- the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
- the child's adjustment to his home, school and community;
- the mental and physical health of all individuals involved;
- 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 as defined in Section 103 of the Illinois Domestic Violence Act of 1986, 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; and
- the 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.
Illinois Parentage Act of 1984 is used to establish parentage (generally and oftentimes, paternity). With respect to custody and visitation, the Act states that if a parent is a sex offender, he or she is prohibited from having custody or visiting the child without the other parent’s consent. Also, while an action for custody or visitation is pending, the child cannot be removed from the state of Illinois.
Probate Act of 1975 governs when you are seeking guardianship of a minor child. The statute states the following:
A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the proposed guardian:
- has attained the age of 18 years;
- is a resident of the United States;
- is not of unsound mind;
- is not an adjudged disabled person as defined in this Act; and
- has not been convicted of a felony, unless the court finds appointment of the person convicted of a felony to be in the minor's best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian's rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to a child, including a felony sexual offense.
Juvenile Court Act of 1987 governs in those situations involving a child that has been found delinquent, dependent, neglected or abused and has been made a ward of the court. Guardianship or legal custody may be granted if the court finds it is in the best interests of the minor.
Adoption Act governs not only where you are seeking to adopt a child but also where you are seeking temporary child custody while termination of parental rights is pending. So, you may be granted ‘interim custody’ which is where the court grants you - the prospective adopting parents - temporary custody of the child until the final adoption is approved. To adopt in Illinois, you must be at least 18, have resided in Illinois for at least 6 months and pass a criminal background check.
Habeas Corpus Act governs when no other statute applies. This allows the court to take custody of the child if the circumstances warrant.
If you have any questions about these laws or need an attorney referral, please contact us at any time. All calls are free and confidential.
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