If you have kids and want to get divorced, you’re probably concerned about child custody issues. as in Illinois child custody lawyer, I’ve written this article to answer frequently asked questions about child custody.
What is child custody?
First of all, you should know that although people use the term child custody, that is actually no longer the correct legal term to use in Illinois.
In fact, child custody, which used to refer to the legal decision-making power of parents, is now called “allocation of parental responsibilities.”
What are parental responsibilities?
As you probably know, parents have a lot of responsibilities. But The legislature came up with four main areas of parental responsibilities.
There are four main areas of parental responsibilities. They are as follows:
- Health care
- Extracurricular activities
If you are involved in an allocation case, those four areas must be addressed.
Can we just write something up between us and sign it?
People frequently tell me that they and the other parent have written up an agreement that they have both signed.
But that doesn’t mean much because it is not enforceable. In other words, you won’t be able to take some “agreement” you write up and ask a judge to make the other parent comply.
There is no point to getting lulled into a false sense of security be hashing out some out-of-court agreement with the other parent.
If you want an agreement to be enforceable, it mus be entered as a court order. A judge can force compliance with a court order.
What is the name for a court order involving kids?
You might come across several types of orders involving children. I’ve tried to simplify the various types below:
- Regular order: This type of order might handle small issues and is temporary in nature.
- Order for temporary allocation or parenting time: This is an order that allocation decision-making or parenting time while the case is still pending, that is, until the judge issues a judgment after trial or the parents come to an agreement. These orders are “temporary” in nature, but understand that the “temporary” period can seem quite long if your case lasts a long time.
- Judgement for Allocation of Parenting Responsibilities and Parenting Time: This is the type of order that is the ultimate goal of a court proceeding regarding children. Although orders can be modified, this is what people refer to as the “permanent” order.
How do we know which parent gets to make which decisions?
There are basically two ways that parties in a divorce can end up with an enforceable court order regarding parental responsibilities. The two ways to get an enforceable court order are as follows:
- By agreement: Many issues in a divorce end in agreement, including allocation of parental responsibilities. Sometimes people reach an agreement quickly. Sometimes it takes a long time to reach an agreement, and the agreement is only reached after a bunch of stuff happens in court, and a bunch of money is spent.
- Through litigation: If people cannot reach an agreement, there’s only one other way to get an enforceable court order. That’s through a hearing, or trial, where the judge order something without agreement of the parties. Sometimes when this happens one person can feel like a big winner . . . but that is rare. Often times, when a judge makes the decisions, neither party is very happy.
A judge is supposed to make decisions based upon the “best interest” of the child. But like I explained above, different people have different ideas about what that means.
It is hard to predict what a judge will think is in your child’s best interested. You and the judge might not have the same ideas!
Check out this article for a bit more detail about what factors a judge should consider when determining allocation of parenting responsibilities.
Can one parent make all the decisions? Or do we have to split it up?
The term you may be familiar with is “sole custody.” Back when one parent was awarded sole legal custody, that generally meant that the parent with sole legal custody got to make all of the major decisions in the child’s life.
Now, when the court allocates parental responsibilities, it can order sole decision making or share decision making for each of the four areas of parental responsibilities.
People can consider speaking with a lawyer about what is desired and what is practical to expect – those are sometimes two different things.
Following are some examples of how parental responsibilities could be divided:
- Complete sole decision making: One parent can have all decision-making power for all areas of parental responsibilities
- Split sole decision making: One parent can make decisions involving education and extracurricular activities, in the other can make decisions for health and religion
- Completely shared decision making: Both parents can share decision-making responsibility for all of the four main areas of parental responsibilities
What about decisions that aren’t one of the four main areas of parental responsibilities?
There are many decisions for parents to make on a daily basis. Not all of them fit into one of the four main areas of parental responsibilities.
For example, consider some of the following decisions:
- What should a child eat for lunch?
- What should the child wear to school?
- What type of fun activities should we do today?
Obviously, there are many more small decisions made throughout the day. These types of decisions are called routine decisions. Wichever parent has a child in a given time gets to make routine decisions.
For example, let’s say one parent has the child every other Saturday and Sunday. If That parent has a child on a Saturday, and that parent gets to decide what the kids going to eat, generally what the kid does during the day, and that sort of thing. That being said, whichever apparent is making routine decisions should not override certain scheduled activities, such as extracurricular activities that are pre-planned.
Where will be the children’s primary residence?
Regardless of how time is split up between the parents, the children need to have a primary residence. That’s the case even if time is with 50/50 between the parents.
The primary reason for this is due to the school code. The primary residence is what determines what public school the children are qualified to go to.
It might be a good idea not to get too hung up on this issue. It is generally a better use of time to worry about the split of time between the parents.
What type of parenting time will there be?
Parenting time is what used to be called the visitation.
Parenting time schedules can vary. I’m going to give you a few examples of parenting time schedules. The actual schedule in your case could vary.
- Parent one has alternating weekends of Friday, Saturday overnights , and every Wednesday night. Parent two has every remaining overnight.
- Parent one has alternating weekends of Friday, Saturday and Sunday overnights , and every Wednesday night. Parent two has every remaining overnight.
- Parent one has the child every Sunday night through Wednesday night. Parent 2 has all remaining overnight.
- One has every Friday and Saturday overnight. Parent two has every remaining overnight.
How does a judge decide a parenting time schedule?
Of course, you and the other parent could agree on a parenting time schedule. But if you cannot agree, the matter will be decided in a hearing or trial. That means the judge will decide.
The judge makes all child related decisions based on what he or she thinks is in the best interest of the child.
Well there are certain guidelines and precedent, every judge is different. And every case is different. so it is impossible to predict exactly what any given judge will think about your specific situation.
But the following are some important factors that matter to a judge:
- The pattern of parenting prior to the divorce case
- Continuity in the child’s environment, including educational and social environment
- The positions of other people involved in the case, such as a child’s representative, guardian ad litem, or a psychologist
- Each parent’s preference
- If the child is around 14 years of age or older, the child’s preference
The law does list many factors which a judge is supposed to consider. I’m not going to list all of them here. But what you should know is that while a judge should consider all the factors specified in the law, and any other relevant factors, a judge can weigh a factor however he or she desires. In other words, there’s no towing exactly which factor is the most important. It is not a scientific process.
Here are some other things you should know about parenting time:
- Parenting time and allocation of parental responsibilities aren’t directly related. One could have 50% of the parenting time, and none of the decision making. Or, parents could equally share decision-making, but one parent might have only 20% of the parenting time.
- Parenting time can impact child support.
- Parenting time can change over time. For example, if a child is an infant when the case is in court, parenting time will likely be different 5 years later. If there is a significant change in circumstances, either parent can file motion to modify parenting time.
How long does it take litigate allocation of parental responsibilities and parenting time?
If you can agree on parenting issues, they can be resolved very quickly. But if you can’t, then there must be litigation.
Litigation for allocation of parental responsibilities and parenting time can be very lengthy. Sometimes, what happens early in a case can set a pattern that remains after the case is over. Sometimes people take unreasonable positions and create lengthy litigation.
It is impossible to tell exactly how long it will take to litigate the issues of allocation of parental responsibilities and parenting time. You might get a temporary order within three or four months. But there might not be a final order until the case is over, and that could take a year or more.
Here are some of the factors that can determine how long It will take to get an enforceable court order for allocation of parental responsibilities and parenting time:
- The presence of mental illness
- The presence of substance abuse
- The evidence available regarding the historical pattern of parenting time
- The opinions of people such as a child’s representative, a guardian ad litem, or a psychologist
- How the judge likes to handle the issues
- The approach of each party’s lawyer
- The amount in complexity of other issues, such as whether one person is trying to move to a new area
How expensive is it to litigate?
Litigating issues related to kids can be very expensive.
One of the reasons is that it is hard to prove a lot of things relating to kids. For example, it can be hard to prove the historical pattern of who cared for the kids. Most people don’t keep a diary that contains every day of their lives and who did what.
Another reason it can get very expensive is because other people will be involved in your case. Each of them will be paid, and they’re not cheap. Here’s a list of the types of people that might be involved in your case:
- A guardian ad litem who can act as a witness in the case and will make his or her opinion known to the court
- A child’s representative who act as a lawyer for your child, and who can file motions and do everything that one of the spouse’s lawyers can do
- A psychologist or psychiatrist who will conduct a type of study about the family and write a report that will be presented to the court; the report will contain a family history, an analysis of the issues, and a recommendation as to what to do about allocation of parental responsibilities and parenting time
Even people who are not rich can spend between $10,000 and $40,000 to litigate about child-related matters. You might spend more or less.
The unfortunate thing about arguing about kids is that it is hard to prove things. That means litigation can take longer, and people might try really hard for very small gains. That gets expensive. It is generally more work than people think.
Generally speaking, evidence wins cases. Anyone planning to litigate a case should be familiar with the concept of evidence, and how to gather it. Of course, your lawyer should advise you of these things. But you might also want to check out the article I wrote titled “FAQ: Gathering evidence in a divorce.”
What if the other parent took the kids out of state?
Sometimes, one parent wrongfully removes children from the state of Illinois. When that happens, it can lead to a crisis.
I refer to the parent that removes the child as the removing parent, and the parent who is still in Illinois as the Left behind parent.
When the removing parent wrongfully takes the child from Illinois, most often that parent will try to get the court in the new state to hear the child custody case.
But if they left behind parent takes the right steps, that can be prevented.
The law that play is the Illinois Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). That law determines which of two states has the jurisdiction, or power, to decide matters relating to child custody, allocation of parental responsibilities, and parenting time.
Needless to say, The left behind parent would much rather the case be heard in Illinois. It’s hard to fight a case in another state.
It’s common for emergency circumstances to exist when a child is wrongfully taken from Illinois.
In critical UCCJEA situations, the left behind parent needs a lawyer who has considerable expertise in the UCCJEA. Our office has this expertise.
In fact, the UCCJEA is a very complicated law, and not many attorneys have considerable experience dealing with complex UCCJEA cases. Therefore, parents dealing with multi-jurisdictional UCCJEA cases must choose wisely when hiring a lawyer. Making mistakes early on in such a case can have a very drastic effect on the rest of the case.
If you want to learn more about the UCCJEA, I’ve written the following articles about the following topics you might want to check out:
- Basic FAQ on the Illinois UCCJEA
- Relocation-related emergencies and the Illinois UCCJEA
- Illinois UCCJEA teleconferences
When can allocation of parental responsibilities and parenting time be modified?
Suppose you and your spouse have a enforceable order on allocation of parental responsibilities and parenting time.
You might wonder when that order can be changed. In other words, you want to modify the previous court order.
This area of the law can get complex because it is very fact-dependent. That means many facts can come into play.
For many people, it might be obvious that a child’s life may change if there is an emergency. For example, if one parent becomes hospitalized on a long-term basis, it’s common sense that that child will be with the other parent more. Further, and such a case, it’s common sense that court orders could usually be easily modified.
Orders for allocation of parental responsibilities and parenting time can be modified if there is a significant change in circumstances.
What qualifies as a significant change in circumstances depends upon the judge, but a judges guided by case law. Case law is a term that refers appellate cases that have been about the topic at hand and guide the trial court.
But to keep it simple, a significant change in circumstances means a large life change that is not caused by the person who wants the modification. In other words, one cannot cause one’s own change and then ask that orders be modified as a result.
Can you tell me what is going to happen in my case?
No lawyer can tell you exactly what is going to happen in your case. The facts of every case are different, there are many judges, and the actions of your spouse and your spouse’s lawyer cannot be 100% accurately predicted.
Rather than trying to predict an ultimate outcome, it is usually better to try to react strategically when appropriate.
If you are wondering what you can do to figure out what is going happen in your case, the best thing to do would probably be to contact a lawyer. You can contact us here. We practice primarily in the Illinois counties of Cook, DuPage, and Lake. For UCCJEA-related cases, we can consult on cases throughout Illinois.