In this article, you will discover:
- How custody is determined
- The factors that go into determining the child’s best interest
The child’s best interest is what the courts are going to look at to determine who gets custody or parenting time. Illinois is very special, or at least they want to be unique and have decided that we will not call things “custody” or “visitation.” Instead, we will call it allocation of significant decision-making, primary decision-making responsibility, and award the majority of parenting time. Custody is parenting time and decision making, and visitation is the parent who didn’t get those things. The “custodial” parent is the parent awarded the majority of parenting time However, I tend to say custody and visitation as it is more straightforward.
What is the best interest of the child? It’s an abstract concept that the legislators have attempted to codify into a statute. They’ve got 15 factors in the statute that the judges are supposed to consider. And if you are a bit of a statute geek, you are welcome to look it up at 750 ILCS 5/602.5. But, for everybody else, I’ll just go ahead and show you some of what those factors are that the court is supposed to look at in determining the child’s best interest. They start with the wishes of the child, the child’s adjustment to home, school, community, mental and physical aspects, desires of the parents, child’s needs, the level of each parent’s participation in prior significant decision making, and then the catch-all of any other factors that the court especially finds to be relevant—so making sure that you are not pigeonholed into those 14 other categories.
The reality is that attorneys might sometimes put up a table of the 15 standards and how our client meets them, therefore awarding custody to our client. Usually, it’s much more informally discussed than something like a structured table or something along those lines. Instead, it depends on what parents were primarily performing the caretaking roles before the divorce. Therefore, we’ll assume that parent will continue performing those day-to-day caring activities for the child. Whether the judges admit it or not, that is how the courts will begin with their analysis on how to determine what parent will be awarded custody. Once you know who that person is, it’s up to you to either reinforce that you are representing a parent who primarily is the caretaker or attack that.
The way you do it is you bring to light some other factors in that parent’s benefit, like let’s just say Dad wasn’t the primary caretaker before, but now Dad has moved to a school district with a top-tier school. The child already has friends from summer camp that live in that neighborhood, so they’d be able to hang out with those friends more often. There’s also extended family nearby, so the cousins that the children were close to will be even closer. Those are a few factors that would come to light and start to show the judge that the roles are changing.
Previously, if the marriage had remained intact, the family’s lifestyle would have still been the same, and they would have gone to this school. So, hence, why take them out of that school and put them somewhere else and also, Mom here has attempted to facilitate a loving and healthy relationship with the other parent as well. Dad, in contrast, has not been showing any willingness or ability to promote or encourage a close and continuing relationship between the other parent and the child. Those are two other things that could also affect the ruling.
That’s why we have these trials because deciding is not easy. If they were easy, you wouldn’t need an impartial, objective judge to make a ruling because you would have sorted it out amongst yourselves . To summarize, custody is determined based on the best interests of the child standard. They look at those 15 factors, starting as to who is the primary caretaker, and if one parent doesn’t like how that turns out, what is that parent going to do differently than historically that would put the children in a better position according to those 15 factors that the statute has laid out.
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