Illinois Determines Custody Under “Best Interests” Standard

The main factor in deciding which parent receives custody of a child in a divorce proceeding is the best interests and welfare of the child. There are two types of custody: physical and legal. Physical custody means physically is living with the child, while legal custody means making important decisions for the child, such as school, religious affiliation and medical care.

When deciding custody, the court will consider the wishes of the parents, but the overriding factor is what is best for the child. The issue of who is at fault for the divorce is not determinative of the child custody order, and the order is not meant to punish either parent.

There are two basic types of custody arrangements: sole custody and joint custody. In sole custody, one parent takes care of and lives with the child, and also makes all decisions for the child's welfare. In joint custody, both parents share either physical or legal custody, or both.

Like many standards in the legal field, determining the best interests of the child appears at first to be a relatively simple way for a court to make custody determinations. However, determining the best interests of the child in a divorce case actually encompasses a wide variety of factors:

• The wishes of the child, taking into account the child's age, maturity and education
• The wishes of the parents
• The relationship between the child and his or her parents, siblings and anyone else who may significantly affect the child's best interests
• The child's home, school, and community environment
• The mental and physical health of all individuals involved
• The physical violence or threat of abuse by one parent, either against the child or the child's other parent, or ongoing abuse as defined in Illinois' Domestic Violence Act
• The willingness of each parent to foster an ongoing relationship between the other parent and the child

The court presumes that a child is best off having a relationship with both parents, but does not presume that joint custody is in the best interests of the child. Courts also consider whether the child has adjusted to one home or the custody of one parent. Courts generally frown on splitting up siblings.

Modifying child custody is also possible. As when first deciding custody, a court will modify a child custody order when it is in the best interests of the child to do so. This usually occurs when life changes arise that may affect custody and visitation, such as the desire of either parent to relocate.

If you are considering divorce or are contemplating modifying a custody order, contact an experienced family law attorney to discuss your options.