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Frequently Asked Questions to Illinois Child Custody Lawyers
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Does the opinion of the children matter determining custody in Illinois?
A child's opinion of who should be his or her custodian does matter, but the child's wishes are not controlling. Generally when a mature child expresses sound reasoning as to his or her preference in custodian and where the reasons relate to the child's best interests, it can be strongly considered. Examples could be the child's desire to remain with friends or to continue attending the same school.
Children are not required to give a good reason for his or her preference of custodian. It is not a requirement for the court to ask the child about his or preference. The court must determine whether the child's preference is in his or her best interest.
Does the child have to be physically present in Illinois for the court to assume custody jurisdiction?
Physical presence of the child, although desirable, is not a prerequisite for jurisdiction to determine his or her custody.
In order for a father to be awarded custody, does the mother have to be declared an unfit mother?
No. Parents have equal rights to custody of their children.
Will the court ever split custody or are siblings always kept together?
Generally, it is considered the best interests of the children to keep siblings together. Sometimes there are exceptions. A judge will look at the totality of the circumstances when making a decision whether or not to separate siblings.
After custody has been decided, can the child decide he of she wants to live with the other parent?
In order to modify custody, the child's welfare must be adversely affected by the present custodial arrangements. If a child simply decides he or she wants to live with the other parent, it is not a sufficient cause for modification. How a child functions in a school environment is something that the court uses to determine if there are any adverse affects. If the child continues to do well, it can be inferred in many cases that the child is not suffering any adverse affects due to his or her custody situation. In order to modify the custodial decision, adverse effects, along with the likelihood of harm, must be established.
What effect does child abuse or neglect have on custody in Illinois?
Any degree of mistreatment or violence can be grounds for custody modification.
How do Illinois courts look at a situation where a parent has a new spouse, live-in companion or other person sharing the home?
If there is a situation in which the child will come in contact with another person or be influenced by this person because of remarriage or any type of living situation, and there is concern about the stability of the child's environment, then the mental condition and character of that other person will be relevant to the initial custody or modification proceeding. This third person can be an additional party to the case. Mental and other examinations can be performed so that the court is fully informed of the situation.
Can one parent remove the child from Illinois temporarily?
The parent removing the child must inform the other parent that he or she is going to temporarily remove the child from Illinois. Vacation is an example of when this is necessary. The other parent or their attorney must be informed of the address and telephone number where the child can be reached and when the child will be returned to Illinois.
May a custodial parent move out of state with the child?
A child may not be removed permanently from the state without a court order. The custodial parent must file a removal petition, which is different from a petition for modification of custody. Moving the child to another state would affect the visitation schedule and lessen the involvement for the other parent. The removal of the child must be proved to be in the best interest of the child. The State of Illinois retains jurisdiction when the minor child is absent from the State.
A court must consider the following factors in determining whether a proposed removal is in the best interests of the child:
- the likelihood that the move will enhance the general quality of life for both the custodial parent and the child
- the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation
- the motives of the non-custodial parent in resisting the removal
- the visitation rights of the non-custodial parent
- whether a realistic and reasonable visitation schedule can be reached if the move is allowed.
How soon after a custody judgment can a custody modification be petitioned?
No motion to modify a custody judgment may be made earlier than two years after the custody judgment, unless the court allows it to be made on the basis of affidavits. The affidavits must show that there is reason to believe that the present custodial situation may cause harm physically, mentally, morally or emotionally to the child. A motion to modify may be made within the first two years by stipulation by the parties.
How does spousal abuse affect custody?
Securing the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well being of the child during and after the litigation is the goal. The focus is always on the child's best interest. If the abuse is shown to have affected the child, the court considers this along with other factors.
Can a person other than a parent file a petition for custody in Illinois?
Yes, but only if the child is not in the physical custody of one of his or her parents. Notice of any child custody proceeding must be made to the child's parents, guardian and custodian. The court may permit intervention of other interested parties.
Will a custodial parent's misconduct lead to custody modification?
Again, it is necessary to see if the actions of a custodial parent seriously endanger the mental or emotional health of a child. The harm which might be caused by a change of environment to the custody must be compared with the advantages of that change to the child.
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