Child custody in Illinois

What the law tells the judge to look at

In the order the law lists them.

1. Decision-making: the child's wishes, considering the child's maturity and ability to express reasoned, independent preferences about decision-making.750 ILCS 5/602.5(c)(1)
2. Decision-making: the child's adjustment to home, school, and community.750 ILCS 5/602.5(c)(2)
3. Decision-making: the mental and physical health of everyone involved.750 ILCS 5/602.5(c)(3)
4. Decision-making: whether the parents can cooperate to make decisions, or how much conflict between them may affect shared decisions.750 ILCS 5/602.5(c)(4)
5. Decision-making: how much each parent took part in past major decisions about the child.750 ILCS 5/602.5(c)(5)
6. Decision-making: any earlier agreement or pattern between the parents about decision-making.750 ILCS 5/602.5(c)(6)
7. Decision-making: the wishes of the parents.750 ILCS 5/602.5(c)(7)
8. Decision-making: the child's needs.750 ILCS 5/602.5(c)(8)
9. Decision-making: the distance between the parents' homes, the cost and difficulty of transportation, everyone's daily schedules, and whether the parents can cooperate in the arrangement.750 ILCS 5/602.5(c)(9)
10. Decision-making: whether a restriction on decision-making is appropriate.750 ILCS 5/602.5(c)(10)
11. Decision-making: each parent's willingness and ability to support a close and continuing relationship between the child and the other parent.750 ILCS 5/602.5(c)(11)
12. Decision-making: physical violence or threats of physical violence by a parent against the child.750 ILCS 5/602.5(c)(12)
13. Decision-making: any abuse against the child or another member of the child's household.750 ILCS 5/602.5(c)(13)
14. Decision-making: whether a parent is a sex offender, the nature of the offense, and any treatment completed.750 ILCS 5/602.5(c)(14)
15. Decision-making: any other factor the judge expressly finds relevant.750 ILCS 5/602.5(c)(15)
16. Parenting time: the wishes of each parent who wants parenting time.750 ILCS 5/602.7(b)(1)
17. Parenting time: the child's wishes, considering the child's maturity and ability to express reasoned, independent preferences about parenting time.750 ILCS 5/602.7(b)(2)
18. Parenting time: how much time each parent spent on caretaking in the 24 months before the petition (or since birth if the child is under 2).750 ILCS 5/602.7(b)(3)
19. Parenting time: any earlier agreement or pattern between the parents about caretaking.750 ILCS 5/602.7(b)(4)
20. Parenting time: the child's relationships with parents, brothers and sisters, and anyone else who may significantly affect the child's best interests.750 ILCS 5/602.7(b)(5)
21. Parenting time: the child's adjustment to home, school, and community.750 ILCS 5/602.7(b)(6)
22. Parenting time: the mental and physical health of everyone involved.750 ILCS 5/602.7(b)(7)
23. Parenting time: the child's needs.750 ILCS 5/602.7(b)(8)
24. Parenting time: the distance between homes, transportation cost and difficulty, daily schedules, and whether the parents can cooperate in the arrangement.750 ILCS 5/602.7(b)(9)
25. Parenting time: whether a restriction on parenting time is appropriate.750 ILCS 5/602.7(b)(10)
26. Parenting time: physical violence or threats of physical violence by a parent against the child or another household member.750 ILCS 5/602.7(b)(11)
27. Parenting time: each parent's willingness and ability to put the child's needs ahead of their own.750 ILCS 5/602.7(b)(12)
28. Parenting time: each parent's willingness and ability to support a close and continuing relationship between the child and the other parent.750 ILCS 5/602.7(b)(13)
29. Parenting time: any abuse against the child or another household member.750 ILCS 5/602.7(b)(14)
30. Parenting time: whether a parent is, or lives with, a convicted sex offender, the nature of the offense, and any treatment completed. The parties are entitled to a hearing on this.750 ILCS 5/602.7(b)(15)
31. Parenting time: the terms of a military family-care plan, if a parent is being deployed.750 ILCS 5/602.7(b)(16)
32. Parenting time: any other factor the judge expressly finds relevant.750 ILCS 5/602.7(b)(17)

Other things the judge considers

• The law presumes both parents are fit. The judge cannot restrict a parent's parenting time unless it finds, by a preponderance of the evidence, that the parent's parenting time would seriously endanger the child's physical, mental, moral, or emotional health.750 ILCS 5/602.7(b); 5/603.10
• The judge may interview the child in chambers about the child's wishes, and may get advice or an evaluation from a professional or order an investigation.750 ILCS 5/604.10
• A deployed parent can ask the court to let a person the child knows use substitute visitation during deployment.750 ILCS 5/602.7(d)

What the judge may not consider

The judge cannot consider a parent's conduct that does not affect that parent's relationship with the child. Nothing in the law requires that each parent be given decision-making responsibilities.

Joint custody

No presumption. Illinois has no presumption for or against shared decision-making or equal parenting time. The judge assigns each major decision area to one or both parents based on the child's best interests, and the law presumes both parents are fit.

The child's wishes

The judge considers your child's wishes, taking into account the child's maturity and ability to express reasoned and independent preferences. The law does not set an age. The judge may talk with the child in chambers; the interview is recorded and the transcript is sealed.

Domestic violence

Abuse and physical violence or threats against the child or a household member are factors the judge must consider. There is no general presumption against giving parental responsibilities to a parent who committed domestic violence. If a parent's conduct seriously endangers the child, the judge can restrict that parent's responsibilities, for example by ordering supervised parenting time, exchanges in a safe place, or a treatment program. In an order of protection case, if the judge finds after a hearing that the respondent abused a child, the law presumes that giving the respondent physical care or temporary decision-making is not in the child's best interest.

Establishing paternity

How

Unmarried parents can sign a Voluntary Acknowledgment of Parentage (VAP) at the hospital. You can also sign it later at a local registrar of vital records, county clerk's office, Department of Human Services office, or Child Support Services office, or complete it at home with a witness and mail it to the Illinois Department of Healthcare and Family Services (HFS). Once signed, witnessed, and filed with HFS, it has the same effect as a court judgment of parentage. The second parent can be a genetic parent or an intended parent through assisted reproduction (not surrogacy). If the birth parent was married to someone else at the birth or within 300 days before, that spouse must also sign a Denial of Parentage. Either signer can rescind (cancel) the VAP within 60 days after it takes effect, or before a court or agency hearing about the child, whichever is earlier. After that, it can be challenged in court only for fraud, duress, or material mistake of fact, within 2 years. If you do not sign a VAP, a court case can decide parentage.

Form

Voluntary Acknowledgment of Parentage (VAP) (HFS 3416B)

Cancellation form

Rescission of VAP or Denial (HFS 3416E), within 60 days

Agency

Illinois Department of Healthcare and Family Services (HFS), Child Support Services
https://hfs.illinois.gov/childsupport/parents/parentage.html
1-800-447-4278 (TTY 1-800-526-5812)

Changing an order

To change a parenting plan or allocation judgment, the judge must find by a preponderance of the evidence that, based on facts that arose after the order (or were not anticipated), there was a substantial change in the child's or a parent's circumstances, and that the change is needed for the child's best interests. Decision-making cannot be changed within 2 years of the order unless the parties agree or the court allows it based on affidavits that the child's present environment may seriously endanger the child. Parenting time can be changed at any time on a showing of changed circumstances. The judge can make some changes without showing changed circumstances, for example if the change reflects the actual arrangement for the last 6 months without objection, is minor, or both parents agree.

Waiting period: 2 years for decision-making (with exceptions); none for parenting time

Law: 750 ILCS 5/610.5

If the other parent does not follow the order

If the other parent does not follow the parenting time schedule, you can file a petition for abuse of allocated parenting time (it must say you made a reasonable attempt to resolve the problem); courts must have a fast procedure for these cases. If the judge finds by a preponderance of the evidence that the parent did not comply, the judge can add conditions, order a parenting class or counseling, require a bond, order makeup time of the same type and length (within 6 months, or within 1 year if it cannot be made up within 6 months), find the parent in contempt, fine the parent per incident, and order repayment of your expenses. Unless there is good cause, the parent who broke the order must pay your reasonable attorney fees and costs. After a contempt finding for parenting time abuse, the judge can also suspend the parent's driver's license, order probation, or order periodic imprisonment of up to 6 months, or impose a fine of up to $500 for each finding of parenting time abuse.

Law: 750 ILCS 5/607.5

Grandparent visitation

Yes, in limited cases. A grandparent, great-grandparent, step-parent, or sibling of a child who is at least 1 year old can ask for visitation only if a parent unreasonably denied visits and that caused the child undue mental, physical, or emotional harm, and at least one of these is true:

• The other parent died or has been missing at least 90 days
• A parent is legally incompetent
• A parent was in jail or prison for more than 90 days before the filing
• The parents are divorced or separated, or a case about the child is pending, and at least one parent does not object
• The parents were never married, do not live together, and parentage has been legally established.

The law presumes a fit parent's decisions about these visits do not harm the child; the person asking must prove otherwise. The judge looks at factors such as the child's wishes and health, the prior relationship, good faith of both sides, and whether conflict can be kept from the child. A visitation order cannot be changed for 2 years unless there is risk of serious danger.

Custody by someone who is not a parent

A person who is not a parent can file for allocation of parental responsibilities only if the child is not in the physical custody of one of the parents. A step-parent can file if the parent with the majority of parenting time died or is disabled, the step-parent cared for the child, the child wants to live with the step-parent, and it is in the child's best interests. A grandparent who is the parent or step-parent of a deceased parent can file in certain cases, such as when the surviving parent was absent, in custody, or convicted of certain crimes against the deceased parent or child.

Custody and visitation in the order

Yes. An order of protection can give the petitioner physical care and possession of the child, order the respondent to return the child or not remove the child, give temporary significant decision-making to the petitioner, and set, restrict, or deny the respondent's parenting time. If the judge finds after a hearing that the respondent abused the child, the law presumes giving the respondent physical care or temporary decision-making is not in the child's best interest. An emergency order can be issued without notice if the petition and testimony show abuse.

Military parents

The judge considers a deploying parent's family-care plan, and can let a deployed parent designate someone the child knows for substitute visitation.

Law: 750 ILCS 5/602.7(b)(16), (d)