| DIVORCE
Standing
A child custody proceeding can be brought by a parent or a person other than the parent if the child is not in the physical custody of the parent. 750 ILCS 5/601(b).
A person other than the natural parent who seeks custody based upon having "physical custody" has to show more than mere possession of the child.
"Physical custody" has been defined by the Illinois Supreme Court to mean that the parent has "voluntarily and indefinitely relinquished custody" of his or her child. In re Petition of Kirchner, 164 Ill.2d 468, 491, 649 N.E.2d 324, 334, 208 Ill. Dec. 268, 278, (1995).
Joint Custody
750 ILCS 5/602.1
Joint custody is frequently discouraged because both parents need to show an "extreme degree of cooperation."
Joint custody requires creation of a "Joint Parenting Agreement."
A child’s time is generally not split equally between the residential and non-residential parent. Parents together determine the child’s educational, health-care, religious training, and other major decisions pursuant to the "Joint Parenting Agreement."
Sole Custody
The Custodial parent alone determines the child’s educational, health-care, and religious training.
Factors Determining Custody
Best Interest
750 ILCS 5/602
The "best interest of the child" is the sole determining factor used by the court and contains the following considerations:
the wishes of the parents
the wishes of the child depending on the child's age, maturity, and education
the interaction of the child with the parents
the child’s adjustment to home, school, and the community
the mental and physical health of all parties
any acts of violence by the parties, and
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
The court shall not consider the conduct of a present or proposed custodian, if such conduct does not affect his/her relationship with the child.
Practical Matters
At about age 14, the child’s wishes are very significant. Courts don’t generally like to split siblings.
The "primary caretaker" of the children historically gets prime consideration for custody.
The marital residence generally follows the award of custody. However, this may vary in different parts of the state. In some counties, the preference is to allow the custodial parent to reside in the marital home only until all children turn 18.
Temporary Custody
750 ILCS 5/603
Temporary custody is awarded by the same standards as permanent. The final custody hearing should be de novo, but some judges tend to make their temporary order permanent unless good cause for a change is shown. The client should get temporary custody as soon as possible in proceedings.
Representation of Child
A guardian ad litem (GAL) may be appointed for children. The Parents pay for the GAL.
Expense
Custody fights generally cost thousands of dollars. Experts are brought in, and all parties’ lives are examined.
Violation
See Child Abduction
Custody Modification
750 ILCS 5/610
Unless stipulated by the parties:
Less than two years from original judgment: Not modifiable "unless the present environment may seriously endanger the child’s mental and emotional health."
More than two years after judgment: Modifiable if there is a substantial change in circumstances of the child or custodian AND in the best interest of the child. The standard of proof is clear and convincing evidence.
Custody must be modified in the state where the original judgment was entered unless that state no longer has jurisdiction or has declined jurisdiction and another state currently has jurisdiction, under 28 USCS 1738 (A) (f) (see jurisdiction, above).
Removal of Children from State
750 ILCS 5/609
The court may approve removal from the state if the move is in the child’s best interests. The burden of proof that removal is in best interests is on the party seeking to remove. Relevant considerations to determine best interest (In Re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988)) include the following:
Whether the move enhances the general quality of life for the custodial parent and the children
Whether custodial parent has a good motive
Whether non-custodial parent has a good motive in resisting removal
Whether it is in the child’s best interest to have a close relationship with both parents and other family member(s), and
The effect of the move on visitation.
In a recent opinion, the Illinois Supreme Court clarified the first factor in Eckert. In Re Collingbourne, Ill. S. Ct. Docket No. 94677 (May 22, 2003). In Collingbourne, the court noted that a custodial parent seeking removal need not prove that the child will experience a direct benefit as a result of the move. In determining the best interests of the child, it is proper for a circuit court to consider indirect benefits to a child as a result of expected enhancement in the quality of life of the custodial parent if the removal were allowed.
Visitation
Parental Right
750 ILCS 5/607
No right exists before paternity is established. A paternity finding by itself does not establish visitation rights. The order must provide for visitation.
The court will force a child to visit.
Visitation may not be withheld because support has not been paid.
Parental Obligation
A Parent has an obligation to foster the relationship between the child and ex-spouse. This obligation may be taken into consideration in the award of child custody.
Supervised Visitation
750 ILCS 5/607(a)
The burden of proof falls upon the custodial parent to show that unsupervised visitation would pose a "serious endangerment of the child’s physical, mental, moral, or emotional health." Courts are reluctant to impose supervised visitation.
Grandparents
The Illinois Supreme Court has held that the grandparent visitation statute, 750 ILCS 5/607 is unconstitutional on its face. Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1 (2002). The court ruled that the statute infringes on the fundamental right of parents to make child rearing decisions, in violation of the due process clause of the fourteenth amendment of the United States Constitution. Based on this decision, grandparents no longer have the right to petition for visitation.
Sex Offense
A parent shall not have visitation rights if convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age while incarcerated, on parole, or a mandatory supervised release program and thereafter, until that person completes a treatment program approved by the court. (5/607 (e)).
Visitation Modification
750 ILCS 5/607
Visitation can be modified at any time if it serves the best interest of the child.
Enforcement
750 ILCS 5/607.1
Violation of a visitation order can be enforced by filing a petition for rule to show cause why the offending party should not be held in contempt.
In addition, there is available an expedited procedure in the case of visitation abuse.
Visitation abuse occurs when a party has willfully and without justification either:
denied visitation as ordered by the court or
exercises his or her visitation rights in a manner that is harmful to the child or the child’s custodian.
If the court finds that visitation abuse has occurred, it may order one or more of the following:
modification of visitation to specify periods of visitation or restrictions on visitation
supervised visitation with a third party or public agency present
make-up visitation
counseling or mediation, or
other appropriate relief.
The court shall award attorneys fees and costs if it finds that the enforcement action is vexatious and constitutes harassment. (5/607.1 (g)).
Visitation Interference
Visitation Interference is when a party "detain(s) or conceal(s) a child with the intent to deprive another of his or her rights to visitation." The police can criminally enforce against unlawful visitation interference under the provisions of 720 ILCS 5/10-5.5. Unlawful Visitation Interference is a petty offense. Violation of a court order establishing visitation rights is required before a complaint may be filed.
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(*taken from the Attorney Desk Reference Manual)
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