One of the most emotional and important issues in divorce cases is determining the custody of minor children of divorcing parents. Custody, in the legal sense, means the right to make decisions with respect to the welfare of the children. In other words, the right to make decisions regarding education, medical, religious and overall welfare of the child. When both parties share the decision making authority it is called “joint custody.” When one party alone has this decision making authority it is called “sole custody.” It is important to remember that in Illinois the term “custody” does not, in and of itself, determine the time the a child might spend with each parent. It is, however, customary that a child will generally live primarily with a parent with sole custody.
It is almost always in the best interest of minor children if their parents can reach a joint decision with respect to the custodial arrangements. When parents are unable to agree as to the custody of their children, the Court is called upon to place custody of the children with one or both parents. In this case, retaining a expert divorce lawyer experienced in custody disputes is critical.
In determining custody in Illinois, the Court is officially guided by statute. Illinois statute 750 ILCS 5/602 provides that “the court shall determine custody in accordance with the best interest of the child.” The statute then lists ten factors that the court shall consider in determining custody. These factors are:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) 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;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(9) whether one of the parents is a sex offender; and
(10) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.
The Court may also consider any other factor it determines is relevant to determining the best interest of the child. One reason that it is extremely important to hire a divorce attorney with expertise in child custody cases is because these attorneys can accurately evaluate which factors will be most important to the Court. In my experience, the most important factor to the Court in the majority of cases is determining which parent is the primary caregiver. Absent unusual circumstances, the Court usually awards custody to the parent who it views as the primary caregiver.
There is no statutory definition for “primary caregiver,” but it is usually the person who is primarily responsible for caring for the children on a day-to-day basis. It is the primary caregiver factor that is also the reason that I believe many custody disputes are won or lost before either party speaks with a divorce lawyer or files a Petition for Dissolution of Marriage. For instance, sometimes one spouse moves out of the marital residence as part of an initial separation weeks or months before either spouse speaks to a divorce attorney or files for divorce. In this situation, the children would necessarily live with and spend more time with one of the parents, who would almost certainly be determined to be the primary caregiver by the Court.
Resolving child custody disputes in Court can be the most important process of your and your children’s lives. It is, therefore, extremely important to hire a divorce attorney with the experience, knowledge and expertise to get the best possible result.