In Illinois, the legal framework surrounding child custody has evolved over the years.
There has been a shift from terms such as “custody” and “visitation” to broader labels including “allocation of parental responsibilities and parenting time.” The concept of allocation provides a broad umbrella of child-related issues addressed throughout a custody matter under the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).
The intent of the IMDMA focuses primarily on the best interests of the child when allocating parental responsibilities and parenting time. Despite this intent, contested custody cases continue to be some of the most emotionally charged and financially demanding issues handled in family law. It is essential for parents and litigants alike to understand how a court’s determination of a child’s best interests is directly linked to a parent’s credibility, conduct, and ability to keep a child’s needs at the center of the issue.
Illinois statute provides for two major prongs of parental responsibility: significant decision-making authority and parenting time.
Significant decision-making authority is governed by Section 602.5 of the IMDMA. This addresses whether one party or the other, or both, will be responsible for major decisions relating to the child’s healthcare, education, religion, and extracurricular activities. Parenting time is governed by Section 602.7 of the IMDMA. Parenting time, formerly referred to as custody or visitation, provides each party specific time during which they have the child in his or her care. Courts may allocate parental responsibilities solely or jointly, depending on a plethora of “best interests” factors provided by the statutes which are tailored to the child’s needs.
Under the IMDMA, allocation of parental responsibilities is guided by the “child’s best interest” standard. The statutes list several best interest factors for courts to consider. Some prevalent themes courts focus on include the wishes of the child, the parents’ ability to cooperate and communicate, the mental and physical health of all parties, prior involvement of the parents, and the child’s adjustment to their environment.
When child custody is contested, the credibility of each party becomes significant.
Courts will consider the parents’ testimony and the consistency, or lack thereof, the testimony has with evidence presented. Courts are also certain to factor in a parent’s willingness and ability to foster the relationship between the child and the other parent.
Custody proceedings have the potential to remain pending for a significant time. Temporary orders addressing parental responsibilities are often entered during a case’s pendency to provide stability and consistency for everyone involved. Parties are encouraged to seek their desired parenting time early in the case to establish a status quo. Although temporary, these orders tend to impact final outcomes if properly complied with. At the resolution of a custody proceeding, parties are required to submit an Allocation Judgment to the court, along with a final parenting plan. These documents encompass the permanent allocation of parental responsibilities between the parties. Parenting plans may be entered by agreement of the parties, or the court may choose to adopt one parent’s proposed parenting plan, or the court may adopt its own parenting plan incorporating provisions from one or both proposals submitted by the parties. If there is no agreement between the parties as to a final parenting plan, it is essential each party submit their proposal or position statement for the court’s consideration as to a parenting schedule and decision-making authority. A final Allocation Judgment typically also provides for the procedure parties must follow if a dispute arises down the line regarding the Allocation Judgment. The most common dispute resolution method parties use if a problem arises is a referral to mediation prior to bringing the issue before the court.
Mediation can be a useful and cost-effective resource for parents experiencing disagreements on child-related issues.
Mediators assist parents in addressing disputes in a setting outside of the courtroom. This process is typically attorney-free and intended to encourage negotiations directly between the parties before the issue is litigated. If successful, parties can walk away with an agreement that is later incorporated into an enforceable order submitted to the court. If unsuccessful, attempted negotiations are confidential and cannot be used in court. The process is a final attempt to resolve differences prior to court intervention. Mediation is not only encouraged but typically required in Illinois prior to requesting a judge decide on a child-related issue.
If mediation is unsuccessful, the first step courts and practitioners often take is the appointment of a Guardian ad Litem (“GAL”). The Guardian ad Litem is tasked with investigating the facts of the case and making a final recommendation to the court as to any outstanding issues. The Guardian ad Litem’s sole consideration is the best interests of the child, and while their recommendations are not legally binding, they are given substantial weight in the courtroom. When a Guardian ad Litem is appointed to a case, parties should be cooperative and transparent, and all communications with the Guardian ad Litem should be focused on the child. It should not be seen as an opportunity to campaign against the other parent.
Once a custody matter lands before the court, it is essential that parties can differentiate between evidence that matters and evidence that likely does not.
A common issue parties have once the litigation stage is reached is understanding why certain evidence that he or she may consider important falls lower on the priority list of a judge or practitioner. Documents including records of communication, educational and medical records, photographs or other reflections of parental involvement, and testimony from witnesses with relevant knowledge are typically relevant. This evidence is centered towards issues that courts consider when making decisions in custody cases: a parent’s ability to communicate with the other, specific needs or routines of the child, a parent’s history of involvement in the child’s life, and third-party observations regarding pertinent parenting issues.
Courts also consider conduct of the parties that may suggest an inability to co-parent or that appears less focused on the child’s best interests. Parties should avoid interfering with the other’s parenting time, making unilateral decisions for the child without notifying the other parent, isolating or alienating the other parent, and the like. A custody matter is not an opportunity for parties to establish themselves as “the better parent,” and courts will typically opt for a parenting plan that keeps both parents involved if the circumstances allow for it. While there are certainly scenarios where one parent is more involved than the other, judges are trained to recognize when those conditions exist based on the parties’ lifestyles and status quo as opposed to when one party is attempting to ice the other parent out as a legal strategy. A scenario where a court finds a parent’s involvement has been limited due to the latter option may negatively impact a party’s position.
Custody matters carry the potential to cause emotional strain and significant stress, not only for parents but also for children.
It is imperative that parties keep the child’s well-being at the forefront of their priorities. Children should not be weaponized or unnecessarily exposed to disputes between the parties. Parents should do their best to strictly comply with court orders, communicate with each other respectfully, and avoid unnecessary conflict. As always, it is strongly recommended that parties seek an experienced attorney when navigating custody issues. While litigation is an inevitable component of many custody matters, reasonable compromise is not only timely and efficient but economically efficient as well. A knowledgeable practitioner can strike a healthy balance between encouraging fair negotiations and recognizing when it is appropriate to leave an issue up for a judge to decide.
To reiterate, custody matters are child-focused, with the outcome depending heavily on the facts presented. The court’s role is not to pick a winner, but to make difficult, often permanent decisions tailored to the best interests of the child. A willingness to cooperate and co-parent allows parties to make many of those decisions for themselves. While it can be difficult to focus on longevity amidst a lengthy and demanding custody case, it is important to consider the bigger picture rather than short-term “wins.” Statutory framework may provide general guidance for judges, but each case carries its own set of facts, determination of credibility, and human judgment. For parents and practitioners alike, custody matters should center around promoting stability and advocating for the child’s best interests.
