Custody and Visitation

The Court will, and therefore the parents must, consider factors including the child's relationship with each parent, including who has historically been the child's primary caregiver, each parent's ability to care for the child, the willingness of the parties 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 the child is able to make the decision for him or herself regarding where he or she will live. The short answer is 18. Until that time, the court will determine who has custody of the child. At the same time, however, as the child grows older the court will grant more deference to the child's wishes, if those wishes are based upon mature reasoning.

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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 children pursuant to the terms of a joint parenting agreement. The joint parenting agreement will establish each parent's custodial time with the child. In addition, it will provide a list of matters that will be jointly decided by the parties, such as where the children will go to school, their religious upbringing, non-emergency medical and other healthcare, the child's extra curricular activities, such as high-school sports and other matters that the parties agree should be jointly determined. The time that each parent has with the child in a joint-custody arrangement is whatever the parties can agree, ranging from an allocation more typical of visitation, such as alternating weekends and holidays, to a more or less 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 upon a joint custody arrangement, one of the other parties will have custody of the children. The custodial parent is the primary caregiver for the child, determining where the child will go to school, appropriate medical care and similar issues typically resolved by a parent. A parent not awarded will be awarded visitation with the child absent a showing that visitation posed risks to the child. Visitation will typically involve alternating weekends, alternating holidays, some time during the week, such as several hours on a weeknight and time in the summer. The use of the term "reasonable visitation" in an order is occasionally seen, but it is usually an invitation to later problems. As the parents' and children'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 a guardian as litem. The attorney for the child is to act solely as an attorney and be bound to advocate the child's wishes, and who could take part in the conduct of the litigation, including maintaining the confidentiality of statements by the child, while a guardian ad litem 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 best interest of the child, 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 that the attorney had 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.

In the Bates case, the Illinois Supreme Court recently held the statute denied procedural due process because the mother was not permitted to cross-examine the child's representative about his recommendations. As a result, the Court found that the statute was unconstitutional as applied in that case. This leaves the statute and its utilization in serious doubt.