Custody and Visitation

When it comes to determining custody and visitation, the Court will, and therefore parents must, consider multiple factors, including a child's relationship with each parent ─ who has historically been the child's primary caregiver, each parent's ability to care for the child, and the parties' willingness to facilitate a strong bond between the child and the other parent ─ and, when age appropriate, the wishes of the child.

A question that often comes up is when a child is able to make the decision for himself or herself regarding where he or she will live. The short answer is 18. Until then, the court will determine who has custody of the child. However, as the child grows older, the court will grant more deference to the child's wishes, if those wishes are based on mature reasoning.

To schedule an appointment to discuss child custody, please call one of our central Illinois law office locations or contact us online.

Custody can be vested with either parent, subject to visitation with the other parent. In the alternative, the parties can be awarded joint custody. Joint custody is a court determination that both parties will share custody of the child pursuant to the terms of a joint parenting agreement, which establishes each parent's custodial time with the child. In addition, the agreement will provide a list of matters that will be jointly decided by the parties, such as where the child will go to school, his or her religious upbringing, non-emergency medical and other healthcare issues, the child's extra curricular activities (e.g., high school sports), and other matters that the parties agree should be jointly determined. The time each parent has with the child in a joint custody arrangement is whatever the parties can agree on, ranging from an allocation more typical of visitation, such as alternating weekends and holidays, to a equal division of time between the parents. Finally, the parties must agree on a method to resolve disputes, typically a mediator.

If the parties are unable to agree on a joint custody arrangement, one of the parties will have custody of the child. The custodial parent is the child's primary caregiver, determining where the child will go to school, appropriate medical care, and similar issues typically resolved by a parent. A parent not granted custody will be awarded visitation with the child absent a showing that visitation poses risks to the child. Visitation will typically involve alternating weekends, alternating holidays, and some time during the week, such as several hours on a weeknight and time in the summer. Orders occasionally include the term "reasonable visitation," but that usually is an invitation to later problems. As the parents' and child's interests change, the ability to agree on a "reasonable" visitation schedule becomes more difficult. It is better to have a specific visitation schedule; if the parents get along well and a specific need or request comes up, such as switching weekends, parents are free to deviate from the order for that purpose.

The courts were given the authority under a statute effective in 2000 to appoint an attorney as the child's representative, a role designed to combine the role of an attorney for the child and as guardian ad litem. The attorney for a child is to act solely as an attorney, bound to advocate for the child's wishes, and who could take part in the conduct of the litigation, including maintaining the confidentiality of the child's statements. A guardian ad litem, however, could not participate in the litigation other than to make recommendations to the trial court on specific issues and is obligated to advocate for the child's best interests, even if that is against the child's wishes. In addition, the guardian ad litem has investigatory powers and is subject to being called as a witness and cross-examined at trial. The statute was designed to combine these functions, so the attorney has the authority to take part in the conduct of the litigation, including a duty of confidentiality, while possessing the power to investigate and make recommendations like a guardian ad litem, and act contrary to the child's wishes if doing so would further the child's best interests.