Determining Custody in Illinois Divorce and Paternity Cases

Many individuals going through divorce or paternity, otherwise known as parentage cases are surprised to hear when consulting an attorney that “custody” isn’t a real concept. What the attorneys mean by this is that the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) has been amended several times in the last few years and the term “custody” has been replaced with “allocation of parental rights and responsibilities.”

What is Parenting Time?

Previously, terms such as “physical custody” and “legal custody” were used to describe parenting time and decision-making authority, respectively. Now, since the adoption of the term “allocation of parental rights and responsibilities,” a custodial designation is used to describe the parent with a majority of parenting time and for school enrollment purposes, as well as designating significant decision-making authority between the parties.

Determining Parenting Time in Illinois

Parenting time is a term used to describe a schedule set either by agreement of the parties or by order of the court following a hearing setting forth the days and times each parent will exercise visitation with their child(ren).  A typical parenting time schedule will include regular, holiday and vacation parenting time. 

-       Regular parenting time

o   Weekday and weekend parenting time

-       Holiday parenting time

o   Federal, State and school holidays

-       Vacation parenting time

o   Typically used to describe vacation time during summer school breaks

What is Decision-Making Authority?”

“Decision-making authority” is primarily used to described “significant” decision-making, but also encompasses day-to-day decisions as well. Generally, the parent who is exercising parenting-time (in other words, the parent who has the child(ren) on any given day) is responsible for making decisions for that day. Significant decision-making is limited to the following topics:

-       Education

-       Extra-curricular Activities

-       Medical/Healthcare

-       Religion

Significant decision-making authority can be allocated between the parties jointly (the parties both make decisions) or solely (one party is granted decision-making authority). 

Determining Decision Making Authority

Parents can, and often are encouraged, to come to an agreement on parenting time which best facilitates the child’s best interests, as well as providing each parent adequate visitation with the child. Per the IMDMA, the standard courts look at in determining parenting time absent an agreement is the best interests of the child.  Some of the factors that are considered when weighing the child’s best interest include: 

-       The child’s wishes and needs;

-       The parent’s wishes;

-       The amount of time each parent has expended on caretaking functions;

-       The parties’ prior conduct or prior agreements; and

-       The distance between the parties’ residences.

 Similar to parenting time, where the parties can reach an agreement on parenting time, the courts will defer to the agreement, so long as it is not unconscionable. Where the parties cannot come to an agreement, the judge presiding over the case will make a determination. Typically, absent an agreement by the parties stating otherwise, or where there is a history of abuse or neglect, courts tend to favor joint decision-making authority.

Guardian ad Litems in Illinois

The court, on its own motion or on the motion of either party, can appoint a guardian ad litem to represent the minor children in divorce and paternity cases. A guardian ad litem is an attorney with specialized training to determine the best interests of the child.

Courts often describe the guardian ad litem as the “eyes and ears of the court,” in that they’re appointed by the court in order to investigate issues before the court and, ultimately, make a recommendation to the court.

When a guardian ad litem is appointed, they conduct their investigation to determine the child’s best interests. Beginning with the parents/parties to the case, the guardian ad litem will interview them to determine any issues or concerns each parent has regarding the child or the other parent.

Depending on the age of the child(ren) at issue, they might not interview the child, however, most will want to see how the child interacts with each parent. If deemed necessary, they can also interview additional family members or the child’s caretakers (such as therapists or counselors) as part of their investigation.

Finally, once their investigation is complete, the guardian ad litem will make either a written or oral report to the court setting out certain information they found relevant and creating a recommendation based on that information. In many cases, the guardian ad litem’s recommendations are used as a basis to help the parties reach an agreement on outstanding issues in order to avoid continuing to accrue legal costs.

Creating an Allocation Judgment

An allocation judgment is a court order which combines the parties’ agreement or the judge’s determination regarding parenting time and decision-making authority into a comprehensive, court-enforceable document. The document will set out each party’s rights and responsibilities with respect to the minor children involved in the case and sets out, at a minimum, the terms the parties are to follow. 

Prior to a final allocation judgment being entered, the court can enter, by agreement or by judicial decision, a temporary order allocating parenting time and decision-making authority between the parties during the pendency of the litigation.

Both temporary allocation orders and allocation judgment can be modified pursuant to statutory authority. Temporary allocation orders are generally easier to modify with respect to decision-making authority as, once an allocation judgment is entered, the law requires two years pass from the date of entry prior to modifying decision-making authority (absent certain extreme situations). Parenting time, on the other hand, can be modified at any time upon a showing of substantial change in the parties’ circumstances from when the allocation judgment was entered to the date the modification is sought.