Custody FAQ
If we do not agree on custody who decides?
The judge will decide custody, visitation, child support and any other areas of your divorce that you and your spouse are unable to agree upon. If the court becomes involved in determining custody of the children it will probably become a very expensive case. In addition to each party having an attorney, the court may appoint a Guardian ad Litem for the children. (An attorney used to investigate and report back to the court regarding the children’s best interests). The court can order the parties to Mediate the child related issues, or a Custody Evaluation may be ordered. (Custody evaluators are trained professionals, often licensed Clinical Psychologists, used by the courts to gain better insight into the interactions between the parents and children and the temperaments and parenting styles of the parties) Each of these professionals must be paid by the parties to the suit. (Occasionally, even after the Guardian ad Litem and Custody Evaluator have made their reports the parties continue to disagree regarding the custody of their children. In those cases additional Custody Evaluations may be allowed (at the sole expense of the party requesting the evaluation) )
If I move out and leave the kids with my spouse, does it hurt my chances of getting custody at a later date? In a word, YES.
Even if you leave to avoid a dangerous or highly unpleasant situation, it's unwise to leave the children behind if you want physical custody down the line. You don’t break any laws by leaving the kids with the other parent. [The exception would be if the parent with whom the children were left harms the children, and the parent who left had reason to know or should have known that it would happen.]
However, by leaving you do send a message to the court that the other parent is suitable to have physical custody. Also, assuming the children stay in the home where they lived when the family was intact, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children's regular routines.
If you must leave the familial home (and you want to become the primary physical custodian) you should take the children with you when you leave. If you do take the children, you must, as quickly as possible, file a petition in family court for Temporary Custody and Child Support. If this process is delayed, your spouse may go to court first and allege that the children were taken without his or her knowledge. Family law judges frown upon parents who remove the children from the home without seeking the approval of the court. In that case a judge may order that the children be returned to the family home pending future proceedings to determine physical custody.
Can custody and visitation orders be changed in Illinois? After a final decree of divorce or other order establishing custody and visitation is entered by a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") can be made without court approval. However, if one parent later reneges on the agreement, the other person may not be able to enforce it. Thus, it is advisable to obtain a court's approval of stipulated modifications. Courts will usually approve modification agreements unless it appears that they are not in the best interests of the child.
If a parent wants to change an existing court order and the other parent won't agree to the change, the parent wanting a change must file a motion (a written request) asking the court that issued the last order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances" and that the change affects the best interests of the child. This requirement encourages stability and helps prevent the court from having to deal with frequent and repetitive modification requests.
What qualifies as a substantial change in circumstances? Here are some examples:
Geographic move s: If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other. Although an increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contact with their children. If the parents are unable to reach an agreement, the courts in cases will permit the move if the person moving is able to prove that the child will be benefit from the move and that reasonable accommodation can be made for the other parent’s visitation. This affects mainly out of state moves. Moves within the state of Illinois are permitted unless your particular judgment prohibits moves beyond a certain area. (The move may still be allowed, depending on the circumstances)
Change in Lifestyle . A parent can obtain a change in a custody or visitation order if substantial changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a non-custodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a change in lifestyle that is sufficiently detrimental to warrant a change in custody or visitation depends on the facts of the particular case.