Illinois distinguishes between legal custody and physical custody. Legal custody refers to the parent’s right to make legal decisions for the child, such as those concerning education, religion, and medical treatment. Physical custody refers to who the child will reside with.
Legal and physical custody can be joint (shared between both parents) or sole (granted only to one parent). Note that Illinois does not presume that joint custody is best for the child, though the court will try to give both parents as much involvement in the child’s life as possible.
The Child’s Best Interests
Parents can either reach a mutual agreement on custody (particularly in the case of an uncontested divorce), or the court must step in to make a decision if the parents cannot agree. Nonetheless, the court has the final say to approve a custody agreement, and they will make a decision based on the child’s best interests, which includes:
- the child’s and each parent’s wishes;
- the child's relationship with their parent(s), sibling(s), and anyone else who may significantly affect the child's best interests;
- the child's adjustment to their home, school, and community;
- the parents' and child's physical and mental health;
- whether there has been physical violence or a threat of physical violence by either parent;
- whether there has been ongoing or repeated domestic violence, 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 either parent is a sex offender; and
- the terms of either parent's military family care plan that must be completed before deployment, if applicable.
The court usually considers it in the best interest of siblings to keep them together in the same household. There are exceptions where a child's special needs or family dynamics require separation, though.
Note that the court will also heavily weigh a parent’s fitness in raising the child. A parent with a mental illness, psychological problem, or substance abuse struggle is considered unfit to serve as the primary custodial parent, especially if this behavior negatively affects the child’s wellbeing and their ability to parent.
Modification and Relocation
A parent has the right to request a modification of an existing child custody arrangement if:
- both parents agree to the change;
- the child's present environment may seriously endanger the child's physical or mental health; or
- at least 2 years have passed since the date of the custody order, a change has occurred in the circumstances of the child or parent(s), and a modification is necessary to serve the best interests of the child.
Be aware that the changed circumstances in the third situation must be based on facts that did not exist or were unknown at the time the original order was entered. In other words, there must be new or previously unknown facts to justify a change.
In some situations, a parent may seek to relocate or move. If the move is within the state, a custodial parent may remove their child to another part of the state without a court order unless they agreed otherwise in writing. However, such a move could be considered a material change in the child's circumstance that the other parent may cite as a reason for custody modification.
If a custodial parent seeks to relocate with the child out of state, however, they must obtain a court order to do so. The relocating parent must prove that the relocation serves the child's best interests, including:
- whether the move will enhance the general quality of life for both the custodial parent and the child;
- whether the custodial parent's proposed move is in good faith or is a disguised way to frustrate the other parent's visitation rights with the child;
- the motives of the noncustodial parent in resisting the removal;
- the visitation rights of the noncustodial parent; and
- whether a reasonable visitation schedule can be achieved if the move is allowed.
If you are facing a custody battle or have questions about modifying an existing order, reach out to our firm for legal assistance. Our attorneys are deeply familiar with the family court system in Illinois, and we can help you navigate the courtroom confidently and comfortably. We also understand what’s at stake in a custody case; we will work one-on-one with you to strategize an effective legal plan that protects your relationship with your child and both your interests.