How Child Custody Works in Illinois

During the course of a divorce, child custody will be awarded to one or both of the parties. The court can award sole or joint custody, and one parent will usually be designated the residential parent where the child(ren) reside primarily. This spouse or parent will also be entitled to child support, which is calculated based on the non-residential parent’s net income. The non-residential parent will likely have a parenting (visitation) schedule with the child(ren) which can vary from little or no time with the child(ren) to sometimes equal time as the residential parent. Parents also typically enter into a written parenting agreement which provides for holiday and vacation time and unusual circumstances. To learn more about the issues you might face as a parent during divorce, please contact us. Patrick Markey Law, P.C. • Phone: (312) 223-1763 • E-mail:

Parenting Agreements

The parenting plan will direct the future parental and parent-child relationships. For this reason, parents should be actively involved in developing the parenting plan. Research suggests that when the parents can work together to develop the parenting plan, the plan is much easier to implement and works more effectively. If the parents are cooperatively parenting, they can be supportive of each other, share responsibilities, and make decisions regarding the child’s care and well being.

The Parenting Plan

Parents know the most about the child and the child’s needs. Parents are also aware of their parenting strengths. The parenting plan should be based on both parents’ strengths in meeting the child’s needs. A parenting plan should have the following: how major decisions will be made, the living or residential arrangements of the child and how the child’s time is shared between parents, when an emergency decision-making situation occurs, the other parent should be notified as soon as possible, a holiday visitation schedule, dealing with unusual events, winter and summer break, information sharing and any other items that need to be outlined regarding the child.

Visitation Rights for Divorced Parents in Illinois

Child visitation rights are awarded to the non custodial parent when joint child custody is awarded following separation or divorce. During the divorce process, a court may award short term child visitation rights to one parent while the other will be given primary physical custody of the child(ren) while the case is taking place. Long term child visitation rights are awarded in cases where a family law judge determines that it is in the best interest of the children to have regular contact with both parents.

Child visitation rights are considered a privilege rather than an automatically given right. If the court determines that it is not in the best interest of the child(ren) to award child visitation rights to one parent, s/he may award sole custody to one parent. In cases where child visitation rights are denied, the non-custodial parent may still be ordered to pay child support to the parent with physical custody over the child(ren). Child support responsibilities and child visitation rights are two separate matters in the family court’s eyes.

Conversely, if one parent receives both child visitation rights and child support payment requirements, he may not lose his child visitation rights even if he fails to pay child support. This does not mean, however, that there are no repercussions for failing to pay court-ordered child support. There are numerous ways that a parent can be punished for failing to pay child support, but loss of child visitation rights is not one of them.

Child visitation rights laws allow parents to work out a reasonable visitation plan at their discretion so long as this plan is in the best interest of the children and both parents can agree to the terms. Negotiating child visitation rights can be done independently or with the help of a neutral third party mediator. A mediator can facilitate a discussion of each parent’s needs and wants with the goal of reaching a mutually acceptable agreement about child visitation rights without going to trial.

If an agreement cannot be reached through independent or mediated negotiations, the court may intercede to determine child visitation rights. The court may also determine child visitation rights in cases involving domestic violence or highly conflicted families. When the court determines child visitation rights, it will develop a child visitation schedule that both parents and the child are bound by. A typical child visitation schedule allows the non custodial parent time spent with the child every other weekend, some time during the week, and certain holidays.

Child visitation rights can be changed for a variety of reasons including: relocation of the custodial parent, violation of a court order, a parent’s job change, danger posed to the children by one parent, and more. The person who wishes to change any part of child visitation rights must petition the court for approval. The goal of child visitation rights is to allow each parent an opportunity to develop a parental bond with their children even if the marital bond no longer exists.

Types of Child Custody

Physical Custody

Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.

Legal Custody

Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.

If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won’t get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you – which may harm the children. What’s more, if you’re represented by an attorney, it’s sure to be expensive.

If you think you have circumstances that make it impossible to share joint legal custody (the other parent won’t communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferable, so you will have to convince a family court judge that it is not in the best interests of your child.

Sole Custody

One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit – for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.

Parents who don’t live together have joint custody also called hen they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody means that the parents will make joint decisions on the issue of the children’s health, education and religious upbringing.

Paternity & Parentage

Establishing paternity, known as parentage under Illinois law, is a crucial first step in ensuring that a child receives financial support and a father’s rights are protected. As your attorney, we can help you get a simple, high-accuracy DNA test. Alternately, fathers can also sign a Voluntary Acknowledgment of Paternity (VAP) form. By signing this form, a father assumes all the rights and obligations that come with having a child. In a parentage case, child support, visitation and custody are all issues that need to be resolved. For help navigating this difficult legal terrain, contact the Law Offices of Patrick Markey to schedule a consultation.

Adoption and the Legal Process

There are several types of adoption, including stepparent, adult, co-parent, grandparent or relative, and standby adoption. In every adoption, with the exception of adult adoption, the biological parents’ rights must be terminated either voluntarily or after the court finds them to be unfit parents. The court will also need to find that adoption is in the best interests of the child(ren). The attorneys at the Law Offices of Patrick Markey, P.C. are experienced in this complex field of family law and can help you through the adoption process from start to finish, no matter which type of adoption is required. Contact us to learn more, and to begin the resolution of the adoption issues you face.