Getting Custody of a Child

Getting Custody of a Child

Last updated: March 2014

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Custody is the physical and legal control of a child. There are two types of custody:Joint Custody is where the parents can share custody of a child; andSole Custody is where only one parent has custody.Generally, only the child’s parents can ask for custody. If the parents are not married before the child is born, the court must first establish paternity. A non-parent may also ask for child custody in special circumstances. You may also ask for child custody in:A dissolution of marriage petitionA dissolution of a civil union petitionA paternity petitionA petition for order of protection (temporary custody) A petition for custodyClick on words that appear like 'this' to learn what these words mean.What are the different types of custody? Custody issues are most often determined when married parents divorce, or when a court establishes paternity for unmarried parents. For purposes of this guide, the term “married parents” also means parents joined in a civil union who have adopted a child. The two different types of custody are sole custody and joint custody.Sole custody is when one parent makes the decisions regarding the health, education, religious upbringing and welfare of the child. Joint custody is when the parents share the responsibility to make important decisions concerning the child's welfare. However, parents with joint custody don't necessarily spend equal time with the child. The child usually lives with one parent, the primary residential parent. While the court does presume that a child does best if both parents are in the child’s life, the court will not presume that joint custody is the best arrangement for the child. Custody does not have any effect on the other parent's right to visitation with the child or their obligation to support the child.When can the Illinois courts decide custody for my children? Illinois can decide child custody issues when Illinois has “home-state jurisdiction.” The state with home-state jurisdiction has top priority over other states when there is a disagreement about deciding custody issues. Illinois has home-state jurisdiction when:The children have lived in Illinois for the past six months; orThe children live in another state, but lived in Illinois within the past 6 months and one of the parents or guardians still lives here.If you have only recently moved to Illinois, the state courts may not have authority to make custody decisions about your children. In some cases, however, a state without home-state jurisdiction can decide custody issues. Illinois may do this when:No state, including Illinois, has home state jurisdiction; orThe state with home state jurisdiction decides not to hear the case and one of the parents or children has a significant connection with Illinois.If you are in the middle of a custody proceeding when you move to Illinois and you wish to modify custody, Illinois may not be able to hear your case until the other state declines to decide issues about the children. In emergency situations, Illinois may be able to issue a temporary order to protect the safety of a child living here.Except in the case of a temporary order, once an Illinois court makes a custody decision, the state is able to change or enforce that decision as long as the child or at least one of the parents lives in Illinois. What happens if I have custody and wish to move to another state? The court may allow a parent with custody to leave the state with the child. The parent who wishes to remove the child must be able to prove in court that removing the child from Illinois is in the child’s best interest. The decision to allow removal is made on a case by case basis.To read more about when an Illinois court can decide a custody case, please see "Related Articles."Who can get custody of a child? Generally, only the child's parents can ask for custody. If the parents were not married when the child was born, the father must first establish his paternity before he can ask for custody. For same-sex couples, the non-biological parent(s) must have adopted the child. To read more about custody and unmarried parents, please see "Related Articles."A non-parent may also ask for child custody in special circumstances where the child has been voluntarily and permanently left in the non-parent's care.A step-parent may ask for custody filing a petition if all of following circumstances are met:The child must be at least 12 years old;The step-parent must have been married to the child's custodial parent and living with that parent and the child for at least 5 years;The custodial parent must have died or become unable to care for the child and the step-parent must already be caring for the child;The child wishes to live with the step-parent; andIt is in the best interests of the child to live with the step-parent.How do I ask for custody? You must file a formal written request (called a petition) for child custody with the circuit court. You may ask for custody in a dissolution of marriage petition, in a dissolution of a civil union petition (assuming the party/parties adopted the child), in a paternity petition, in a petition of protection, or in a petition for custody.In addition to the petition, you have to file a "Child Custody Affidavit." This affidavit includes information about where and with whom the child is currently living and where and with whom the child has lived for the past five years. It also informs the court whether there are any other past or current custody cases concerning the child. In some counties, this affidavit may be called a Uniform Child Custody Jurisdictional Enforcement Act Declaration (UCCJEA). The Affidavit/Declaration helps the court decide whether it has authority to hear and decide your case.You must let the other parent know that you are petitioning for custody. To do this, you must send the petition to the other parent. Prepare a summons and ask the Sherriff to serve it on the other parent. The other parent will have 30 days from the date the summons was served to answer the petition or file an appearance in court.If more than 30 days have passed from the date of service and the other parent has not filed an answer, you may ask the court to enter a judgment by default. If the other parent replies to your petition, you will have to have a court hearing or settle the case by entering an agreed order. You will have to follow all of the rules of the court in your county. These rules will tell you how to proceed further in the case.Do the parents still have to go to court if they agree on custody? Even if both of you agree on who should have custody, you should get an order from the court on your agreement. An order signed by the judge will protect each parent's rights and will allow you to enforce the order. The order should clearly state which parent will have custody, what type of custody was agreed to and the visitation schedule. The parents should present the agreed order to the judge.What is a joint parenting agreement? In cases of joint custody, a joint parenting agreement lists each parent's responsibilities and determines child support. It describes how the parents will make major decisions for the children, such as the children's education, health care, and religious training.The joint parenting agreement is generally created by the parents and proposed to the court. It should be specific and explain how any disagreements will be handled.The court will likely not award joint custody if the parents cannot cooperate with each other.What happens if we cannot agree on who should have custody? If you cannot agree on who should have custody, the court will hold a trial and decide who will be the custodial parent. This is often a difficult decision for the court to make. The court may ask a social worker or psychologist to do a custody evaluation and report to the court. The court may also appoint a lawyer called a guardian ad litem to represent the children and to help determine what is in the best interest of the children. The parents will be charged for any costs of these investigations.What do courts look at to decide custody cases? The court will look at the best interests of the child when making a custody decision. To determine the child’s best interests, the court will consider the following:The wishes of the parentsThe wishes of the child depending on the child's age, maturity, and educationThe child's relationship with the parents, siblings, or other significant peopleThe child's adjustment to home, school, and communityThe mental and physical health of all partiesAny past and ongoing acts of violence by a parent against the other parent or a child;Whether one of the parents is a sex offenderFor parents who are in the military, the terms of a parent’s military family care planThe willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the childThe court should not consider the conduct of a parent that does not affect their relationship with the child.At the trial both sides will present their evidence concerning these factors. The judge conducts the hearing and makes the final decision.As a practical matter, courts frown on moving children from a home they have adjusted to or from the custody of the parent who has provided the majority of care for the children for a period of time, especially if the children appear to be fine. Judges also frown on splitting siblings up. A parent’s drug or alcohol addiction can also be an important factor. You should also know that courts presume that children do best if both parents are involved in their lives to the maximum extent possible.How do courts decide what is in the best interest of children? If parents disagree about custody, it is a difficult determination for judges to make. Many judges appoint a lawyer to investigate and inform the court about the best interests of the children. This lawyer is called the "guardian ad litem." The parties are charged for the services of the guardian ad litem.Sometimes a judge orders that a child custody evaluation be completed by a clinical psychologist or social worker. This type of evaluation frequently involves psychological testing and interviewing of the children, parents and others who are involved in the children's lives. Judges may also order home studies or other investigations.Some courts in Illinois have special mediation programs to help parents settle custody disputes. In mediation, a specially trained neutral person tries to help parties talk with each other and then identify and negotiate a custody arrangement. The parties are charged for the mediator's services.If the parents cannot agree then the case goes to trial and the judge decides using the best interest factors described previously.Will I have to take parenting classes? If custody or visitation is being decided in a divorce or parentage case, Illinois requires parents to attend a parenting education class. This class teaches parents ways that they can act to avoid hurting their children during the divorce. Both parents must take this class within 60 days after the first meeting with the judge.In general, the course is at least four hours long and you may be able to take it online. Contact your local Circuit Clerk’s Office for specific information on how to meet this parenting education requirement. Cook County recently approved an online program, and provides information on meeting the parenting education requirement for the Circuit Court.What about visitation? A parent who is not awarded custody of the child has the right to reasonable visitation, unless a court decides the parent is a danger to the child. Visitation commonly includes overnight visitation every other weekend (and often one evening during the week), two weeks during the summer, and every other holiday. Visitation can also include telephone communication, or communication via the internet. Many courts award non-custodial parents more visitation, believing that children do best if both parents are very involved in the children's life.All custody orders should describe in detail the visitation schedule for the parent who will not have custody, as well as how transportation of the child for visitation will be arranged. Establishing a detailed visitation schedule can help avoid disputes over what reasonable visitation really means.Grandparents, great-grandparents or siblings can also request visitation if at least one of the following conditions is present:If the other parent is deceased or missingIf the other parent is incompetent as a matter of lawIf the other parent has been incarceratedIf the parents live separate and apart and at least one parent agrees to the visitationCheck with your local Court Clerk for any specific visitation guidelines.How does the court decide on the amount of child support? Illinois law has set certain minimum guidelines for child support. Under the guidelines, a non-custodial parent must pay a certain percentage of their net income as child support. The percentage increases with the number of children that must be supported. Number of Children % of Non-Custodial Parent’s Income 1 20% 2 28% 3 32% 4 40% 5 45% 6 50%Your child's healthcare is also included as part of a child support order. You can ask the court to order that the non-custodial parent include the children in any group care health insurance plan available to the parent.Courts may order the non-custodial parent's health plan to enroll the child in the parent's health plan, under a "Qualified Medical Child Support Order." These orders are helpful because they prevent the health plan from refusing to enroll the child because of any enrollment period limitations. They also prevent the health plan from removing the child at the direction of the non-custodial parent.You can also ask the court to order either parent to pay for school expenses, including college tuition.For more information on child support, see "Related Articles."

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