Illinois laws on custody: An overview
In Illinois, as in most states, custody laws govern the legal relationship between parents and their children. However, the laws regarding custody can be particularly complicated for unmarried parents who are not married to each other and have not established any legal relationship between them and their children. This is because custody issues in Illinois law generally assume that parents have been married to each other and that they have been granted a divorce in the family court system.
The two key components of any custody and child support case are: allocation of parental responsibilities (child custody) and parenting time (child visitation). The laws that determine custody and visitation have undergone changes this year beginning January 1 , 2016. Namely, changes have been made to the Prior Sole Caretaker Clause, or The Grandparent Clause, and the Primary Residential Parent Law. These changes will impact the primary residential parent’s rights, the visitation of a parent who may have not exercised that right, and the right of grandparents to have visitation with their grandchildren.
The following is an overview of the changed laws under the Illinois Marriage and Dissolution of Marriage Act – 750 ILCS 5/600 through 618, with particular emphasis on how the laws affect unmarried parents.
The rights of unmarried parents under Illinois law
In Illinois, when a child is born to unwed parents, only the mother is automatically granted parental responsibilities (previously known as custody). The father, on the other hand, does not have any legal rights with respect to raising the child until DNA testing establishes paternity. Even after paternity is established, fathers only receive the same rights as mothers when it comes to parenting roles. Recent changes to Illinois law provide unmarried parents with the same legal rights as married parents. While the law may be neutral, there can still be a stigma against unmarried fathers in the public and the courts. Fathers seeking to spend valuable time with their child should not give up against any presumption against them.
Courts may use their discretion to allow parents to spend substantially equal amounts of time with their children. A standard visitation schedule gives each parent the child for half of the weekends, or for half of the holidays during the year. Courts can modify these schedules to suit each family’s unique needs.
Proving paternity in Illinois
Establishing paternity is a crucial first step when seeking custody or even visitation for all unmarried fathers in Illinois. Illinois courts do not automatically recognize a father as a legal parent, which puts them at a distinct disadvantage during parental disputes. It is for this reason establishing legitimate parenthood is so important.
It may seem easy or unnecessary; after all, if you know the child is yours, isn’t that the end of the story? Unfortunately, it is not that simple. Scientific testing can be a highly imperfect process. Hormonal and genetic factors can cause problems with testing procedures, either where the test says the father is definitely not the father, when he in fact is, or vice versa. The results are ultimately only scientifically valid 99 percent of the time. Even if you know the child is your biological child, if there are no legal documents proving it, it will be very difficult for you to pursue custody rights anyway.
In Illinois, there are several methods for establishing paternity. If you were married to the mother of the child in question, paternity is already established under the law. If you were never married, you have three main options:
The easiest method is for the parents to voluntarily acknowledge paternity through the form designated by the Illinois Department of Healthcare and Family Services (HFS), a Voluntary Acknowledgment of Paternity. When each parent signs this form, they are declaring the other parent as the biological parent and that they will both take responsibility for the child. Once this form is signed and dated, the father is legally the biological parent of the child and can pursue custody or visitation options.
If paternity is not established through voluntary acknowledgment, a father can file a petition to declare paternity in the appropriate circuit court. This process can be more complicated and may require you to take a DNA test. Genetic testing can be requested by any party involved in the case, but a judge must order it. If paternity is granted by a judge, it does not automatically result in additional parenting time. Court-ordered visitation or parental responsibilities arrangements are entirely separate from paternity.
A third option involves paternity being established through HFS without having to go through court. This method is called "parentage." HFS performs DNA testing once a state assistance program receives information on the mother, the child and the alleged father of the child. The mother can also ask for paternity testing up front. The alleged father is contacted by HFS and given the opportunity to undergo genetic testing. If the alleged father declines, HFS may ask the mother to submit to a victim of domestic violence determination interview and, if needed, a court hearing. If the paternity testing results state the alleged father is definitely the biological father of the child, he can be put on the birth certificate and is legally the parent of the child.
Types of custody in Illinois
Illinois custody laws provide for two types of custody arrangements between parents: sole custody and joint custody. In the case of sole custody, both legal and physical custody are awarded solely to one parent and the other parent is only granted reasonable visitation rights. In addition to determining a parent’s custodial rights, the court also issues support orders during the divorce case and as part of the divorce itself. Payments do not reduce the amount of child support the custodial parent may receive until the child reaches adulthood.
The difference between sole custody and joint custody is that the court may grant sole custody to one parent alone or joint custody to both parents. Joint custody is explained as guardianship granted to both parents, even if the children live with one parent most of the time or spend equal amounts of time with both parents. The court may award joint custody depending on the best interests of the children involved.
The court will consider a number of factors when deciding joint versus sole custody arrangements:
When parents decide their own custody arrangements through mediation, they must inform the court when their agreement is approved. If the court concludes that there has been a violation of the court’s custody orders, the offending parent may be called before the court for sanctions and other penalties. The court’s jurisdiction continues until the child is 18 years old.
The best interests of the child standard
To determine the "best interests of the child" in disputes between unmarried parents, Illinois courts and judges consider numerous factors. While no individual factor carries more weight or is dispositive, the following are examples of factors that are typically evaluated:
(a) The respective wishes of the child’s parent or parents as to custody;
(b) The interaction and interrelationship of the child with his or her parent or parents, siblings, and other persons who may significantly affect the child’s best interest;
(c) The child’s adjustment to his or her home, school, and community;
(d) The mental and physical health of all individuals involved;
(e) The information and/or testimony of experts;
(f) The financial resources of the parents;
(g) The needs of the child;
(h) The concept of continuity as to each child’s custodial or caretaking residence;
(i) The uniqueness of each child;
(j) The demands of the parents’ jobs; and
(k) The inability of a parent to cooperate with another parent .
It is also important to note that courts will not award custody to a parent who engages in an act that creates a risk of harm to the child, such as physical abuse, sexual abuse, or willful abandonment.
In most cases, single mothers will be granted sole custody of children. In most cases, fathers can be excluded from their children’s lives, particularly based on being unfit or due to criminal history. Notably, under the Child Custody Act of 1977, unmarried fathers have same rights to seek joint custody to that of married fathers. Additionally, the Illinois Parentage Act of 1984 was amended to allow unmarried parents to seek custody of their children in custody proceedings.
How to change the custody agreement
If parents feel that a court-ordered custody agreement is not in the best interests of a child, they may petition the court for a modification. There are various circumstances that might warrant changing a custody arrangement, including employment opportunities, relocation requests, or changes in a child’s needs or the parent’s abilities.
In order to modify a custody agreement, the parents first need to have been granted joint or sole custody by the court. Physical and legal custody may be modified, but visitation cannot be taken away unless the other parent is unfit or abusive. Modification requests should be based upon a significant change in circumstances and the court may look into information regarding the child, such as school records, therapy records, or police reports. In most cases, the court will require a review of the facts regarding a request for modification before a court hearing can take place. Depending upon the results of the review, a court hearing may be scheduled, at which time a judge will determine if a modification is appropriate.
Resources and support
In the multifaceted realm of child custody and divorce, the questions are often straightforward: what does the legal process look like when you want custody? Are there support services for people settling this matter of the family law realm? In this article we address these questions to help you better understand the legal process and how to combat a difficult challenge for few and far between when it comes to Illinois divorces. While the breaking up of a marriage is never easy, the ending of a relationship where there are children involved often makes emotionally strenuous work more unbearable . Having a family law attorney to represent your interests in court can greatly relieve stress during the situation, leaving you to focus your energy solely on your children. As we like to say, leaving the legal work to the legal professionals certainly helps you through the legal process. If you cannot afford an attorney however, there are free or low-cost legal aid options available in your area. These organizations may be able to provide you with legal direction in your custody case, divorce or child support matter.
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