How courts determine visitation and custody in Illinois
HOW DO COURTS DETERMINE CUSTODY AND VISITATIONOn of the most difficult problems a family law attorney is faced with is a contested custody or visitation case. The Illinois Marriage and Dissolution of Marriage Act states:
750 ILCS 5/602 "The Court shall determine custody in accordance with the best interest of the child."
This is an amazingly broad statement which gives the judge who is hearing the case tremendous discretion. The statute tells the court to consider nine factors:
1) The wishes of the child's parent or parents as to his custody;
2) The wishes of the child as to his custodian;
3) The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
4) The child's adjustment to his home, school and community;
5) The mental and physical health of all individuals involved;
(Statutory factors continued)6) The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
7) The occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;
8) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; and
9) Whether one of the parents is a sex offender.
Is there a "Standard Visitation" scheduleIn Illinois, Family Law Judges are given discretion to make these decisions, but the Illinois Judicial System requires Family Law Judges to have training, not just on legal issues, but also in child psychology and child development.
There is not "one standard" visitation schedule that every judge in the state uses for children. Divorce is very difficult on parents, but it is much harder on children. Children can go through guilt believing "they" caused the divorce; children can express hurt, anger and depression and because of their age and not being fully emotionally developed they can have a very hard time dealing with divorce.
A few simple Rules to rememberThere are a few simple rules that are found in the statutes:
1) If one party is a sex offender that person will not get custody of the children.
2) A court will look at all factors to attempt to devise a solution; the age of the children; who has been the "care giver" of the children; the interaction of the children and the parents; work schedules and school schedules and (if applicable) extra curricular activities of the children.
An experienced family law practitioner will give you advice on what to expect: divisions of assets/debts; custody and visitation suggestions, etc. Regardless of why a divorce is occurring, the couple with children will be faced with an ongoing relationship with the other parent at least until the children graduate from high school/college.
ConclusionEach judge has their own particular viewpoint about visitation. Their views have been formed by listening to child psychologists (testifying in court and in continuing education settings) and seeing how divorcing/divorced families interact in the courtroom on a day by day basis. A "good" family law attorney will try to advise you on how a judge will evaluate a case, but that is only an opinion based on the attorney's experience.
(Conclusion continued)If parties can agree on issues of custody and visitation a judge will almost never hear the case unless it is manifestly unfair to the either one of the parties or the children. If the parties cannot agree, the parties will first have to attempt mediation. Mediation is a process where a trained mediator (who may or may not be an attorney) will meet with each side individually and then with both parties to attempt to resolve custody/visitation disputes. Mediation can be successful as to all or only part of the issues in dispute if mediation is not successful