How does a Judge Make Child Custody Decisions in Illinois?

How does a Judge Make Child Custody Decisions in Illinois?

The state of Illinois is slightly different than many other states, in that joint custody is not presumed. Custody decisions in the state of Illinois are made by a judge who bases the decision on the child’s best interest, while attempting to maximize the involvement by each parent or guardian.

During a divorce involving children, often one of the most difficult and contentious parts of the process is determining custody of a child. A common assumption is that mothers have an advantage and will be typically given custody. Though the system once may have worked this way decades ago, the court operates much different today. The interest of the court is to determine what is in the best interest of the child.

There are two different types of custody of a child in the state of Illinois. The first is legal custody. This type of custody gives a parent the authority to decide certain matters of a child’s life such as: where they will receive education, what medical treatment they will receive, and what religion (if any) they will practice. The second type of custody is called residential custody. This type of custody determines where a child will live for a majority of the time and for the other parent, who has the obligation of paying child support.


What is the Difference Between ‘Custody’ and ‘Visitation’?

Although ‘custody’ and ‘visitation’ are often used interchangeably, there is distinct different between the two terms. Custody refers to the parent that has the right to make decisions for the child. Custody of the child will include both legal and physical custody, which are defined in the paragraph above. The parent with custody of the child will be the parent who bears the most responsibility for the day-to-day and long-term decisions for the child. The parent who is granted custody is most often granted the right to have the child live with them as well.

Visitation refers to the time the other parent spends with the child. A visitation plan is usually created by the court, or the parties if they are able to agree. In situations where a Judge makes the custody and visitation decision, the decision will be based off what the child’s best interests are.  Generally, a parenting agreement describes the specific custody and visitation arrangement.


What are the Steps to Determining Custody?

The first step taken is to file a Petition for Allocation of Parental responsibilities within 120 days of service. Once this is done, both parents then submit a proposed “parenting plan”. If the parents are able to agree on a parenting plan, the court will in most cases adopt this plan. Very rarely will the court intervein and order something different. In these cases, the court has determined that the plan both parents have agreed upon, despite being chosen by both parents, is not in the best interests of the child and will explain its reasoning.

In the event that two parents cannot agree to a parenting plan, the court will order them to participate in mediation to attempt to come to an agreement. The court could order the costs to be waived, but typically the cost of the mediation is split between the parents.

If the parents are still not able to agree on a parenting plan after mediation, the court will set a date for a hearing or trial. At this hearing or trial, the court considers the parenting plan of each parent and creates one plan in the best interest of the child.


What is in a ‘Parenting Plan’?

The largest parts of a parenting plan are made up of scheduling the parenting time (the time a child spends with a parent) and allocation of significant decision-making responsibilities.

Some information is required such as:

  • - designation of authority to one or both parents as to the decision making for the child’s education, healthcare, religion, and any extra-curricular activities the child may be involved in
  • - each parent’s right of access to the child's medical and school records
  • - designation of a parent to receive tax benefits for the child
  • - designation of a parent’s address for education enrollment purposes
  • - each parent's residence address, phone number and place of employment
  • - notice requirement of sixty (60) days in the event one of the parents moves
  • - transportation arrangements for the child
  • - notice requirement in the event of any emergency, healthcare, or travel involving the child
  • - agreed arrangements for transporting the child between the parents
  • - arrangements for one parent to be able to communicate with the child during the other parent's parenting time
  • - agreement for resolving issues in the event a parent relocates
  • - provisions for future modifications of the parenting plan, if specified events occur

There are two options when designating parenting time. The first is a schedule that designates which of the parent’s home the minor child will reside in on given days or a method for determining such a schedule with enough detail that it could be enforced in a subsequent proceeding.


How Does a Judge Determine my Child’s Best Interests?

Illinois’s courts have adopted the Uniform Child Custody Act (UCCA) which was implemented as a way to minimize conflicts among guardians, while placing an important emphasis on the best interest of the child. When making this decision, a judge will take many factors into consideration. These factors typically include:

  • - the child’s wishes
  • - the financial stability of each guardian
  • - the guardians’ wishes
  • - each guardian’s mental health
  • - any history of domestic violence or threat of domestic violence directed at the child or other guardian
  • - any history of alcohol or drug abuse
  • - the child’s relationship with each guardian
  • - whether the child has other siblings and who those siblings live with
  • - which guardian handles the daily parenting tasks such as bathing, cooking, transportation etc.


Child custody cases are often emotionally difficult and can be in intense process. It is important to speak with an experienced family law attorney before making any decision in a custody battle. Sean Robertson can be reached at 630-780-1034 or via email at

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