|
WHO IS AWARDED CUSTODY OF THE CHILDREN? |
| |
- The law no longer presumes the mother should have custody.
- Child custody law is now gender neutral.
- Child custody is decided on the basis of what is in the best interest of the child in both divorce and paternity cases.
|
| |
|
| |
|
| |
|
| |
|
| |
Does a parent ever lose a custody case despite being the primary caretaker ? |
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
If a parent does fight for custody, what process will the parties go through? |
| |
|
| |
|
| |
|
| |
|
| Q: |
How well do fathers do in custody cases? |
| A: |
In contested custody trials, while there are no statistics on point, I believe the percentage is tipped in favor of fathers. |
| |
Back to Top |
| |
|
| Q: |
Why ? |
| A:: |
Probably because fathers and their lawyers do not go to trial in a custody case unless the odds of winning are in favor of the father. |
| |
Back to Top |
| |
|
| Q: |
But, are not mothers usually awarded custody? |
| A: |
Yes, but these are cases which are settled and not tried. Lawyers should advise their clients that custody is usually determined on the basis of who has been the primary caretaking parent. In our society it is usually the mother who has been the primary caretaking parent. |
| |
Back to Top |
| |
|
| Q: |
Does a parent ever lose a custody case despite being the primary caretaker? |
| A: |
Yes. A parent will lose if there is a "smoking gun." A smoking gun in the hand of a primary caretaker is when, for example, the other parent abuses drugs or alcohol, or engages in other activities that are harmful to the child. |
| |
Back to Top |
| |
|
| Q: |
My spouse was awarded child custody in the divorce judgment. Can I now have the judge transfer custody to me because it would be in the best interest of the child? |
| A: |
No, not on the basis of the children's best interest alone. The issue of child custody is first decided (in the initial court proceedings) on the basis of the best interest of the child. The law has a strong bias in favor of keeping the child with the present custodian. For a transfer of custody of a child it must first be proved that there has been a significant change in the circumstances of the child, or the custodian, and that the change has negatively impacted on the child. It is only after a change of circumstances is proved that the judge will consider what is in the best interest of the child. |
| |
Back to Top |
| |
|
| Q: |
Isn't there an age, like fourteen, when a child can decide with which parent the child will live? |
| A: |
No. That decision can only be made by a child when the child is eighteen, that is, a legal adult. Until the child is eighteen the custody of a child cannot be determined based only on the custodial preference of the child. The custodial preference of the child should be considered by the judge to the extent that the choice is a mature choice and a choice that is in the child's best interest. |
| |
Back to Top |
| |
|
| Q: |
Are contested child custody proceedings expensive? |
| A: |
Yes. They are very expensive. A contested child custody trial is beyond the means of most parents. For each parent the proceedings will cost about as much as a luxury car. |
| |
Back to Top |
| |
|
| Q: |
Is it less expensive if a child custody case is settled? |
| A: |
Yes, but it depends on how high up the ladder to a trial the case goes before it is settled. The farther up the ladder, the more the expense. |
| |
Back to Top |
| |
|
| Q: |
How about mediation of a child custody issue? |
| A: |
Child custody cases are required to go through mediation before trial by rules of court. A mediator does not decide the issue of custody. A mediator attempts to bring the parties to an agreement on the issue of child custody. |
| |
Back to Top |
| |
|
| Q: |
In addition to mediation are there any other hoops I must jump through in a child custody case? |
| A: |
Yes. The judge will frequently order the issue of child custody to be investigated and a report made to the judge. Investigators are usually professionals in the mental health field who, after the investigation, will report to the court and make recommendations. |
| |
Back to Top |
| |
|
| Q: |
What about joint custody ? |
| A: |
The term joint custody, in the usual case, merely means that both parents must agree on major issues affecting the child, such as religion, education and health. These, however, are not day-to-day issues. Joint custody issues would arise, for example, if the custodial parent wishes to change the religion of the child, place the child in a parochial school, or remove the child from a parochial school, and, in regards to health, an optional medical procedure, such as cosmetic surgery.
The other type of joint custody is more or less equal parenting time between the parents. For more information regarding joint custody please see our Q&A on joint custody. |
| |
Back to Top |
| |
|
| Q: |
What is usual visitation? |
| A: |
For non-infants it is on alternating weekends, alternating legal holidays and a more or less equal division of the Christmas and spring breaks and at least two weeks during the summer vacation, plus one or two post-school/work evenings once a week, or once every two weeks. |
| |
Back to Top |
| |
|
| Q: |
How significant are custody recommendations made to the judge by a custody evaluator? |
| A: |
They are significant, but the recommendation does not decide the case. The recommendation is but one of the factors the judge will consider in deciding child custody. |
| |
Back to Top |
| |
|
| Q: |
Will a father do better in court in regards to such issues as child custody, visitation and child support if he is represented by a lawyer who advertises himself as a "Men's Rights Lawyer"? |
| A: |
No "Men's Rights" is not a legal specialty but is an advertising slogan. There is no course of study or recognized training to become a "men's rights" lawyer. Illinois does not recognize specialties in the law. What a father needs, especially if he is seeking custody, or an unusual visitation arrangement, is the best lawyer he can afford. |
| |
Back to Top |
| |
|
| Q: |
Aren't the child support laws stacked against the father? |
| A: |
No. Many people now know that the child support laws require the non-custodial parent to pay child support of 20 percent of net income for one child, 28 percent for two, 32 percent for three etc. Some fathers go for custody in order to save child support money. This is a mistake. You will spend more to support your children if you have them, than what you will pay the mother in child support. |
| |
Back to Top |
| |
|
| Q: |
Is there a formula for visitation? |
| A: |
No. The standard for visitation is reasonable. That is, the non-custodial parent is entitled to reasonable visitation, unless there is some extraordinary circumstance that would require a court to restrict the visitation of a non-custodial parent. A basis for restriction of the non-custodial parent's visitation might be past proven incidents of neglect or abuse of the child, drug use while supervising the child etc. With respect to reasonable visitation there are no set guidelines, so the court must determine reasonableness based on the age of the child, and the other circumstances and facts of the case. Some cases are resolved in which the parents have relatively equal parenting time. If the matter is contested, the courts generally will not order equal parenting time, however, if the parents reach an agreement in which the children are shared on a relatively equal basis, the courts will generally approve that agreement. |
| |
Back to Top |
| |
|
| Q: |
Are there any laws designed to enforce visitation? |
| A: |
Yes. Unlawful Visitation Interference . This Act makes it a crime for the custodian of a child to detain or conceal a child with the intent to deprive visitation. A complaint of unlawful visitation interference may be made to any police officer. The first two convictions are only petty offenses, that is, punishable by fine only. After two convictions the offense becomes a Class A misdemeanor and can be punished by imprisonment. |
| |
Back to Top |
| |
|
| Q: |
How does a father become involved in his child's life if the father is the primary wage earner and the mother is a stay-at home parent? |
| A: |
Fathers who have full-time jobs can be successful in obtaining custody of their children even if the mother was the primary caregiver before a divorce is filed. The father should cook meals and dress his child any chance he has, which can be done before or after work. He should take off work to take care of his sick child, and not leave this task entirely to the mother. He should involve himself in the child's extracurricular activities, such as becoming a coach. He should read books to his child every night and assist the child in homework assignments. Reading parenting books to educate himself on how to raise a child may help. He and the child should visit the father's relatives often so the child can bond with the father's extended family. Knowing who the child's current friends are and what their interests are, such as favorite books, sports, and toys will show the court he has an interest in his child's life. He should also know his child's teachers and attend all parent-teacher conferences. He should be involved in every decision regarding the child, such as what school the child will attend, the doctors the child will see and when, the child's religious training, the child's social contacts with playmates etc. |
| |
Back to Top |
| |
|
| Q: |
If a parent does fight for custody, what process will the parties go through? |
| A: |
The judge will order mediation; the judge will likely appoint a mental health professional to evaluate the father, the child, and the mother; and the judge may designate a lawyer to represent the best interests of the child. The parties will have contact in some way with any or all of the professionals appointed. |
| |
Back to Top |
| |
|
| Q: |
How can a parent prepare for dealings with the mediator, court appointed mental health professional, or attorney for the child to prove he/she is the better parent to have custody? |
| A: |
The parent can keep a daily log regarding activities with the child; make a list of the child's good qualities to share with the interviewer; be prepared to state what he/she would consider a good custody result and why and should be fair and liberal in his/her proposal regarding visitation by the other parent; be able to articulate why it would be in the child's best interest to be the child's custodian; be ready to discuss his/her future plans for the child, including school, extracurricular activities, medical care, family and friends. It is rarely warranted that one parent should be totally negative about the other parent. The parent should demonstrate objectivity by pointing out the positive parenting skills of the other parent. |
| |
Back to Top |
| |
|
| Q: |
What weight is given to a child's custodial preference? |
| A: |
The more mature the child is, the more weight should be given to the child's custodial preference. For example, it would be foolhardy to insist that a sixteen year old live with the parent with whom the child does not wish to live. The courts will not decide child custody based solely on the child's custodial preference. The child's custodial preference is considered and the weight that is given to the child's preference depends on the child's maturity and whether the child's custodial preference is in keeping with the child's best interest. |
| |
Back to Top |
| |
|
| Q: |
I am the custodial parent. While I enjoy the children, I also enjoy taking a break from my parenting duties when the children's other parent has visitation, and I plan my own activities for these weekends. Sometimes the other parent doesn't show up, so I either have to change my plans, or pay for a child care person. This is not fair. What can I do about it? |
| A: |
Visitation is a right, but it is not a responsibility, that is, the visiting parent is not required to exercise visitation. Sometimes, when it is anticipated at the drafting stage of the parenting agreement, that the visiting parent may be erratic, a provision is put into the settlement agreement that if the visiting parent does not give the custodial parent notice of non-appearance within a certain amount of time (for example, forty-eight hours before the scheduled visitation) that the visiting parent will reimburse the custodial parent if she incurs caretaking expenses on account of the visiting parent's failure to take the children. Such an arrangement might also be agreed upon through negotiations after the divorce judgment is entered. |
| |
Back to Top |
