When two parents who have children or a child under the age of 18 are in the process of obtaining a divorce, the issue of custody and visitation (or otherwise called "parenting time") must be resolved either by agreement of the parties or by a court of law in Chicago or elsewhere in Illinois.
There are two types of custody arrangements, "joint custody" and "sole custody." If two parents share joint custody, they must agree on issues regarding the children that may arise concerning education, medical (doctors and procedures) and religion. One of the parents is usually deemed the residential parent. If the parties cannot come to an agreement, then they are required to attend mediation. If they cannot come to an agreement in mediation, then one party may petition the court for a judge to decide. If a parent has sole custody, then that parent makes the final decision.
If the parents cannot agree on joint or sole custody, then a judge will decide. A judge will look at what is in the child's "best interest." Some of the factors a judge may look at to make a decision are:
- The mental fitness of each parent
- The physical fitness of each parent
- The emotional bond between the parent and the child
- The structure that each parent would provide
- The living arrangements that each parent would provide for the child
- If a child is of a certain age (usually over the age of 13), a court may take that child's wishes into consideration
If the parents cannot agree on custody and have to go to court, the process may become extremely expensive. The court may appoint a Child's Representative or Guardian Ad Litem to represent the best interests of the child. The court may also appoint a psychiatrist or psychologist to conduct an evaluation of the family and issue a report recommending which parent should have custody and what visitation the noncustodial party should have. It is usually in the family's best interest to agree on custody without having to go to court.
A common misconception is that custody and visitation are related. They are not. The issue of who has custody has nothing to do with visitation. In any custody proceeding, the noncustodial parent, with exceptions, is entitled to reasonable visitation.
In Illinois, a standard visitation schedule for a noncustodial parent is every other weekend, a night or two during the week, alternating holidays and extended time in the summer. However, each case is different based on a parent's work schedule, the schedule of the child, etc. The parents may come to an entirely different schedule altogether that best suits the needs of the family. If one parent wants to move out of state with the child, special care must be taken to protect the child's relationship with the other parent.
There are times where a parent's visitation might be restricted. If one parent can show that the other parent's behavior poses a "serious endangerment" to the child, a court may restrict that parent's visitation. Such behavior may include drug and alcohol abuse, physical abuse, sexual abuse and any other behavior that would have an adverse affect on the child. Such restrictions may include supervised visitation by a third party, prohibit overnight visitation or require that visitation occur in the residence of the custodial parent.
Custody and visitation issues usually are the most emotional and stressful in divorce proceedings. It has a negative effect on the entire family. The more the parents can agree on what is in the best interest of the child, the better off the child will be.
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At Rinella and Rinella, Ltd., our child custody lawyers represent clients in Chicago and throughout the surrounding areas in child custody matters. Schedule your consultation with one of our attorneys by contacting us online or by calling 800-699-5181.