- Illinois Child Custody FAQs -
Before any action is taken with respect to child custody, an attorney must be consulted about jurisdictional option and requirements. The law is intended to protect the child's best interest, and any hardships faced by the parents must give way to what is in the best interest of the child.
1) In what types of proceedings can child custody be adjudicated?
Child custody may be adjudicated pursuant the following statutes:
under the Illinois Marriage and Dissolution of Marriage Act (IMDMA) as part of a dissolution or legal separation case
under the Illinois Marriage and Dissolution of Marriage Act (IMDMA) as an independent action, even though the parties have never been married to each other
under the Illinois Parentage Act of 1984 in an action to establish parentage (formerly known as a paternity, or bastardy, proceeding
under the Probate Act of 1975 when guardianship of a minor child is being sought
under the Juvenile Court Act of 1987, when a child has been adjudicated delinquent, dependent, neglected or abused and made a ward of the court
where no other vehicle exists, under the Habeas Corpus Act
under the Adoption Act, pending termination of parental rights, temporary child custody may also be determined.
2) When does an Illinois court have jurisdiction to decide a child's custody?
Jurisdiction for original custody adjudication or modification is pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA).
An Illinois court has jurisdiction to make a child custody determination by initial or modification judgment under any one of three conditions:
Illinois (a) is the home state of the child at the time of commencement of the proceeding, or (b) had been the child's home state within six months before commencement of the proceeding and the child is absent from Illinois because he or she was removed or retained in another state, and (c) so long as a parent or person acting as parent continues to live in Illinois.
It is in the best interest of the child that an Illinois court assume jurisdiction because (a) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (b) substantial evidence concerning the child's present or future care, protection, training, and personal relationships is available in Illinois; or
The child is physically present in Illinois and (a) has been abandoned or (b) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
a) it appears that no other state would have jurisdiction or another state has declined to exercise jurisdiction on the ground that Illinois is the more appropriate forum to determine the custody of the child, and (b) it is in the best interest of the child that this court assume jurisdiction.
Once Illinois has obtained custody jurisdiction over a child, it retains the jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.
3) Must the child be physically present in Illinois for the court to assume custody jurisdiction?
Except under paragraphs 3 and 4, physical presence in Illinois of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
4) Where is a child custody proceeding brought?
Within Illinois, the case is brought in the county in which the child is permanently resident or found. A person other than a parent may file a petition for custody of a child only if the child is not in the physical custody of one of his or her parents. Notice of any child custody proceeding, original or modification, to the child's parents, guardian and custodian is required. The court, upon showing of good cause, may permit intervention of other interested parties.
5) What procedures must a court follow when an out-of-state parent is involved?
Where an out-of-state party is involved, prior to granting or modifying a custody judgment, the court is required to consult the registry of out-of-state judgments to determine whether there exist any communications or documents alleging that the child who is the subject of custody proceedings may have been improperly removed from the physical custody of the person entitled to custody or may have been improperly retained after a visit or other temporary relinquishment of physical custody. If the registry indicates that the subject child may have been improperly removed or retained, the court has the duty, as soon as is practicable, to notify the person or agency who submitted the communications as to the location of the child.
6) What matters are to be considered in awarding custody?
The conduct of a present or proposed custodian that does not affect his or her relationship to the child is not to be considered in awarding custody or visitation. The tender years presumption, which had for most of this century preferred mothers as custodians of young children in the absence of a showing of unfitness, has been abrogated in Illinois since at least 1976. On equal protection grounds, both parents have equal custody rights. There is no presumption in favor of or against joint custody.
7) What are the criteria for awarding custody?
The best interest of the child is the standard for custody determination under IMDMA and the Parentage Act. The emphasis in a custody determination is not on which parent is "better" or "worse," but on the child's best interests considering all relevant factors, including but not limited to:
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 abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
Given the nature of custody contests and the individuality of the disputants, the evidentiary ingredients in a custody dispute are numerous, varied, and interrelated. No one factor is dispositive; each factor must be weighed and considered in its relationship to all of the others shown to exist.
8) Must a mother be declared unfit before a father will be awarded custody?
No. Under modern constitutional theory, parents have equal rights to custody of their children. Fitness of the parent is one element to be considered in determining what is in a child's best interest. The court may consider factors in addition to the statutory factors in awarding custody, but where non-statutory factors are considered determinative of the custody decision, the court is required to state those factors.
9) Do children have any say in the choice of custodian?
Yes, but the expressed wishes of the child are not controlling. The custody preferences of mature children are given considerable weight when they are based on sound reasoning, especially where the reasons relate to the child's best interests, such as a desire to remain with friends, to continue attending the same school and to remain in the same environment. The statute does not require the child to give a good reason for his or her preference, nor is the trial court required to ask a child specifically about custodial preference where the court is in a position to evaluate the credibility, temperaments, personalities, and capabilities of both parents and infer the child's preference from the totality of the child's statements, or from other sources, such as the guardian ad litem. It is recognized that a child's preference may not always accord with his or her best interests, and the court is bound to use its own wisdom and common sense in making a custody award.
10) How important is the status quo in a court's custody decision?
Where the children appear to be well-adjusted in their environment, courts are unlikely to disrupt an acceptable status quo in favor of an unknown alternative. The reason repeatedly given is "the importance of maintaining stability and continuity in a young child's environment." If all other things appear equal between the parents, maintaining the children's stability is often stated as the dispositive factor. Courts will not hesitate to remove a child from an unstable environment, especially where it can be shown that the child is not thriving.
11) Are siblings always kept together, or will court split custody?
It is usually considered to be in the best interests of the children that they not be separated. There are, however, exceptions. Where the special needs or problems of a child appear to require separation, the courts will split children between the parents. The judge will want convincing of the need to separate siblings. A judge is unlikely to split children up to pander to the possessive needs of the parents.
12) What impact do a parent's psychological problems have on the custody decision?
Existence of a mental illness, psychological problem, or substance abuse does not, per se, render a parent unfit for child custody. Where other things are equal, however, it appears that courts may view a parent's marital problems, anxiety and depression as factors in favor of the other parent's custodianship. Where a parent has a significant, longstanding and pervasive history of bizarre behavior and ideas not merely related to the stress of the dissolution, and these would have an adverse effect on the children and the parent's ability to care for them, a court may appropriately decide that the children's best interests are served by granting custody to the other parent.
While prior mental illness of a parent from which he or she has recovered does not justify a denial of custody, the mentally ill parent is required to establish by expert medical testimony that he or she has recovered and is able to cope with the raising of children, and that the children would not be harmed in any way by his or her present condition. Failure to give medical evidence of recovery justifies awarding custody to the other parent where there is no question of that parent's ability to provide and care for the children.
The courts appear to weigh carefully the effect of the impairment specifically on the proposed custodian's ability to parent. Courts are aware that treatment and a favorable response can completely nullify the ill effects of emotional problems that plague a parent during the marriage. Merely overcoming handicaps, however, does not mean a parent must receive custody. Evidence of the impact a parent's impairment would have upon the children is to be considered by the trial court in deciding custody.
13) What impact does a parent's new spouse, live-in companion or other person sharing the home have on a custody decision?
Where another person will come in contact with or influence the child by reason of a remarriage or otherwise in a child's or parent's living situation, and there is a basis for concern about the stability of the child's environment, the mental condition and character of that other person are relevant in an initial custody or modification proceeding. The third party may be joined as an additional party to the case, and mental and other examinations may be ordered so that the court is fully informed. Where the third person is shown to have a history of child abuse, violence, substance abuse, or conviction of a serious crime, this will be considered by the court in awarding or modifying custody.
14) Will spousal abuse affect custody?
Allegations of one parent's abusive conduct towards the other are relevant, but this factor is not all-controlling. There are even reported Illinois cases in which custody of children has been awarded to the parent who has killed the other parent, although other family members have been available. Securing the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation is a goal. Where the abuse is shown to have affected the children, the court is to consider this along with other factors.
15) What are the rights of a custodian?
A child's legal custodian has the right to determine the child's upbringing, including but not limited to education, healthcare and religious training. Custodial powers are not, however absolute. After hearing on motion of the noncustodial parent, a court may specifically limit the custodian's authority where necessary to the best interests of the child. Absent such a limitation, the right to control the education of a child encompasses the right to select the schools the child shall attend. Removal of a child from school and initiating home schooling constitutes a change in circumstances and "warrants judicial inspection." Courts recognize that a child's changing needs, including school needs, may require a change in custody arrangements in order to serve the child's best interest, but educational issues do not occur in a vacuum.
16) If a custodial parent wants to move out of state with the child, will this be permitted?
A child may not be removed permanently from the state without a court order. A removal petition is not considered a petition for modification of custody, even where the parents have joint custody of the child, despite the reality that removal would result in a change in the child's present visitation schedule and diminished involvement with the non-custodian. Removal must be proved to be in the best interests of the child, not merely for the custodial parent's convenience. The State of Illinois retains jurisdiction when the minor child is absent from the State. Illinois public policy is to ensure the maximum involvement of both parents in matters involving the physical, mental, moral and emotional well-being of the child. 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 noncustodial parent in resisting the removal
the visitation rights of the noncustodial parent; and
whether a realistic and reasonable visitation schedule can be reached if the move is allowed.
For a time, it was very difficult to obtain a court order permitting removal of a child, and the custodian might well be in the position of choosing between a child and a new spouse or important career move. The pendulum appears to be swinging towards a more neutral position, but removal will not be permitted unless the parent seeking it provides thorough evidence comparing the benefits of the move for the child against the benefits of staying in Illinois. Such issues as the type of housing, job opportunities, excellence of neighborhood and school, activities for the child, and a well-considered plan to keep the child in touch with the left-behind parent must be addressed. It is also to be noted that some judicial districts in Illinois are more lenient about allowing removal than others. In a case in which a parent may wish to petition for removal of the children, the attitude of the court is a factor to be considered where a choice of venue for the dissolution proceeding is possible.
17) May a parent remove a child from Illinois temporarily, such as for vacation?
Before a minor child is temporarily removed from Illinois, the parent responsible for the removal must inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child will be returned to Illinois.
18) May a custodial parent move the child far away within the state?
Unless the parties have agreed in writing to the contrary, a custodial parent may remove the children to another part of the state without a court order. Since, however, this will bring about as great a disruption in access of the child to the non-custodian, such a move could be considered a material change in the child's circumstance, which could be the foundation of a petition for custody modification.
19) Once custody has been awarded, under what circumstances may it be modified?
Along with best interests of the child, stability and continuity in the child's custodial and environmental relationships are key concepts in Illinois custody law. As a matter of policy, the finality of a custody decision is considered more important than a redetermination of which parent should be the custodian. There is a strong legal presumption in favor of the existing custody arrangement. To overcome the presumption, one of two facts must be established: the custodial parent must be adjudicated unfit to retain custody, or a change of circumstances since entry of the previous custody order must be shown which directly affects the child. A mere finding that modification would be in the child's best interest is insufficient. Facts and circumstances which existed and were known to the parties prior to or at the time of entry of judgment, or a change of circumstances in the life of the noncustodial parent alone, are insufficient to support a change in custody.
Custody may be modified only upon a showing by clear and convincing evidence, based upon facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, (a) that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and (b) that the modification is necessary to serve the best interest of the child. These criteria apply in any proceeding for change of custody, including a petition to change from joint to sole custody and where both parents have moved for modification.
20) What if the child decides he or she wants to live with the other parent?
The child's preference for a change of custody will not, by itself, constitute a sufficient cause for modification, even where the child's feelings are very strong, without showing that the welfare of the child is adversely affected by the present custodial arrangements. A showing that the child's functioning has deteriorated, or is at risk for deterioration, may support a change when shown to be the result of the present custodial environment. Conversely, a child's superior functioning at school has been held to indicate that he or she is suffering no adverse effects in the present environment, and there is, therefore, no reason for change of custody. When substantial changes have occurred in the circumstances of the child or custodian indicating that adverse effects to the child are likely and custody modification is necessary for his or her best interests, the ill effects of the changed circumstances need not manifest themselves before a court can alter custody. The likelihood of harm must, however, be established.
21) Is there a bar to custody modification within a short period of time after a custody judgment?
Absent a stipulation by the parties, no motion to modify a custody judgment may be made earlier than two years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health. Even after two years, changes in custody should neither be arbitrarily made nor be subject to constant or even occasional variation merely to follow fluctuations in the health, employment, or residence of the party last deprived of custody. Such factors as remarriage or securing permanent employment and living quarters, while not controlling, are sufficiently related to the child's welfare, even when involving the parent not then having custody.
22) What effect does child abuse or neglect have on custody?
Any degree of mistreatment or violence constitutes grounds for custody modification. Abuse, however, is not to be confused with a strict approach to discipline, not administered arbitrarily or without some justification, which has not caused serious physical or emotional harm to the child. In most instances, accusations of abuse occur within a constellation of other facts alleged to result from the negative factors in the child's custodial circumstances.
23) What happens if the custodial parent becomes unavailable, as by death or incarceration?
Death of the custodial parent is a significant change in circumstances such as to require custody modification. Upon the death of the custodial parent, the traditional rule is that the other parent gains legal custody of the child, even though he did not have physical custody, even where the deceased parent has made a will naming a non-parent custodian.
Incarceration of a parent is a material change of circumstances giving rise to custody modification. The general rule is that a parent who is not unfit has a superior right to custody of a child over any third party will be applied. An incarcerated parent may make emergency arrangements for the child's immediate care, but cannot dictate that a third party continue to act as temporary custodian for the child for the duration of his or her incarceration, defeating the noncustodial parent's right to custody. When the custodial parent is incarcerated within two years of the previous custody order, the noncustodial parent need not show serious endangerment to prevail on a motion for modification.
24) Will a custodial parent's misconduct lead to custody modification?
Indulgence in moral indiscretions alone is not grounds for a change of custody where the children are leading a normal life. Where actions of a custodial parent seriously endanger the mental or emotional health of the child, however, the harm, if any, which might be caused by a change of environment to the custody is outweighed by the advantages of that change to the child. Recent cases suggest that, although the trial court should give due consideration to the custodial parent's living arrangement and its effect on the well-being of the children in determining whether a change in custody is warranted, conjugal cohabitation of a custodial parent in the child's presence with a person of the opposite sex does not, per se, require a change in custody of minor children. A past history of living with a person to whom one is not married will not foreclose custody.
25) Will the relative affluence of the parents influence the court to modify custody?
The relative affluence of one parent over another, without more, is not a sufficient cause to transfer custody. Evidence of a parent's financial circumstances, or the finances of the parent's new spouse or paramour, may be relevant to the court's full understanding of the circumstances at child's residence in connection with a custody issue.