Introduction To Custody

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1 S H ER MAN A VE, S U ITE 201 E VANS TO N, IL AM IL Y L AW. C OM Introduction To Custody By Joshua E. Stern, Esq. It goes without saying that parents value their children s health and welfare above all else. However, family law cases that involve custody decisions can prove to be challenging for many children. Family dynamics may change. The children may move to a new home or city. They may see more or relatives. less of certain The underlying goal of any court proceeding concerning custody is to protect the minor children s best interests. The ambiguity of the best interests standard cuts both ways. On one hand, it grants the courts a great deal of discretion and allows them to consider the advice of psychologists, child advocates, guardian ad litems, An informed parent has a greater potential to resolve conflicts before they arise and play a more active role in his and any number of third party witnesses. On the other hand, the fluid nature of the process can be frustrating and scary or her case. I also hope to shed some light on the legal process and provide parents and other litigants with a sense for clients. When you add the formalities inherent to the legal system and the input of third parties who, until the of comfort. case began, had never met the children or their parents, it s easy to see why custody issues can be so trying. As always, it is advisable to hire an attorney to review your family law case. Please feel free to contact my office with any questions you may have. -Joshua E. Stern My goal in writing this article is to provide parents with a broad framework for custody. The information contained in this article is not, nor is it intended to be, legal advice. You should consult with an attorney for individual advice regarding your own situation. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. This article should not be used in lieu of hiring an attorney. Please contact the Law Offices of Joshua E Stern with any additional questions you may have.

2 Introduction To Custody The Legal Goal In Illinois, the vast majority of custody and parenting time determinations are decided pursuant to the Illinois Marriage and Dissolution of Marriage Act. The Illinois Marriage and Dissolution of Marriage Act approaches custody determinations with the goal of securing the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation. Custody Custody is an umbrella term and it includes the concepts of physical custody and legal custody. The parent with whom the minor child resides the majority of the time is said to have physical custody, also known as residential custody. Residential custody is important when determining which school the minor child will attend and plays a role in child support determinations. Legal custody refers to the parents decision-making authority. Decision-making authority is either fully vested in one parent (sole custody) or shared between two parents (joint custody). When a parent has sole custody, he or she has full authority to make all major decisions regarding the minor child s upbringing, including choice of religion, school, extracurricular activities, and health decisions. The parent with sole custody has an obligation to foster a loving relationship with the non-custodial parent, to the extent possible. When the parents share joint custody, they must discuss and agree upon all major decisions regarding the minor child s upbringing. A court will not order joint custody unless the parents are able to communicate and cooperate effectively. Decision-making authority may be shared to varying degrees, depending on the best interests of the minor child and any agreement between the parties. For instance, it may be possible for one parent to have sole custody but still be required to discuss all major health decisions with the other parent.

3 How Is Custody Decided? When making custody determinations, the court will look to Section 602 of the Illinois Marriage and Dissolution of Marriage Act. Section 602 provides the standard for determining child custody, namely the Best Interests Of The Child standard. In determining the best interests of the child, the court shall consider all relevant factors including: (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; (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; (9) whether one of the parents is a sex offender; and (10) the terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed. Section 602 is intentionally broad. For example, the fourth factor requires the court to consider the child s adjustment to his home, school and community. This is, in itself, a very straightforward concept. Surely the child would not benefit from being raised in a community he or she did not like or could not adjust to. However, the breadth of Section 602 becomes apparent when trying to determine how a court could assess a child s adjustment to his home, school and community. The court may look at school records, disciplinary reports, and the testimony of others in the community, but it is not required to do so. Additionally, Section 602 provides no guidance for what a well-adjusted child would look or act like. It is ultimately subject to the judge s discretion.

4 How Does A Judge Assess Each Custody Factor? The first thing a judge will do in a custody case is send the parties to mediation in hopes that the parents will be able to reach an agreement. This goes directly to the first factor, namely the wishes of the minor child s parents as to his or her custody. If the parents can reach an agreement on their child s custody, the odds are strong that the case can be dismissed following the entry of an agreed order. Mediation is required pursuant to Illinois Supreme Court Rules, unless the court determines it would be futile or not in the family s best interests. The couple s children will be required to attend at least one of the mediation sessions. If the parents are unable to reach an agreement in mediation, the court will likely appoint an attorney to act in one of three distinct roles: a child representative, a child s attorney, or a guardian ad litem. A child representative is an attorney who is hired to represent a minor child s best interests. However, unlike a child s attorney, the child representative represents the child s best interests as defined by the child representative. The child representative is given the same investigative powers as a guardian ad litem, which is to say that the child representative will interview the child s parents and other individuals in the child s life. The child representative will also look into the safety and suitability of the child s environment. The child representative does not issue a report like a guardian ad litem, but does provide the parties with a pre-trial memorandum of what he or she would advocate if the custody case goes to trial. A child s attorney represents the child s best interests and also has an attorney-client relationship with the minor child. However, unlike a child representative, the child s attorney is not granted the authority to decide what the child s best interests are.

5 A guardian ad litem is an attorney who will conduct an investigation into the minor child s best interests and provide a report to the court. The guardian ad litem will interview the child s parents, investigate the suitability of the child s home environment, and of course interview the child. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations. A guardian ad litem will apply the factors from Section 602 that were discussed earlier in this article. The court may also retain a psychologist and psychiatrist as an independent expert to assess the minor child s best interests. This independent expert would likely meet with the minor child and conduct interviews with the parties and their friends and family members. A psychologist or psychiatrist s report will almost exclusively address the welfare of the minor child, as well as the mental health of the minor child and the parties. In addition to a court-appointed expert, the parties may also retain an expert of their own. This expert will conduct a study similar to that provided by the court-appointed expert. The party hiring the expert will do so at his or her own expense. A judge may also meet with the minor child in the judge s chambers. The parties attorneys may be present, but the parties may also agree to have the judge meet with the minor child alone. The meeting will also be attended by a court reporter, who will produce a transcript of the discussion. The child s home may also be subject to a home-study by a welfare agency, typically the Illinois Department of Children and Family Services. The home-study will look into the child s living environment, as well as how each parent interacts with the child.

6 What Do I Need To Know Going Into A Custody Battle? If you are considering a custody battle, you should know the following going in: First, you should hire an attorney. Custody battles can be big, long, complex, and emotional. If ever there was ever a time to hire a family law attorney, it would be during a custody case. Second, you should be emotionally prepared to have your parenting scrutinized and your relationship with your child examined. It is an uncomfortable experience and it should be done professionally and respectfully, but that may bring little solace. Third, you should look into your own parenting methods and be self-critical. Are you doing everything you can to be a good parent for your child? Is your home environment that much better than the other parent s? In short, do you have a strong case for custody? Last, and most importantly, you should try to resolve your differences through alternative dispute resolution, such as attending mediation sessions or trying to negotiate through your attorney. When both parents seek sole custody, the court cannot award them joint custody. That means ultimately, someone will wind up with diminished authority. While there are scenarios in which that will benefit the minor child, that is certainly not always the case. Do your best to keep the conversation civil and constructive. As always, please do not hesitate to contact my office with any questions you may have. Custody is a serious issue and it requires legal expertise.

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