When parents of minor children separate and decide to live apart, the lives of their children are affected. You may be wondering how is custody determined? There are many factors that need to be taken into consideration, for instance, the new living situation must be decided by the parents and the courts; if the child is living in the state of Illinois, its courts should hear the case. It is vital that you get help from a family law attorney that handles child custody cases on a regular basis.
There may be other circumstances where Illinois is the choice, but that should be aligned with Illinois’ jurisdiction laws. The parents need to prove this from the outset.
Who can claim child custody?
Parents and other concerned relatives are likely to want to claim guardianship. Situations that come to mind are:
Unmarried parents who need to establish the living circumstances for the child
An adult who wishes to take legal custody of a child
An adult who needs to determine who the parent of his/her child is
Pursuing the best interests of the child
Paramount of all criteria considered is the best interests of the child. The courts should consider the wishes of both parents and the child, and analyze it against the child’s relationship with his/her parents. The mental and physical health of all involved is regarded alongside the ability to keep the child safe (possibility of physical or sexual abuse). Some common considerations are, how the child is able to adjust to the home, school, and community he/she is presently in or may move to; third-party witnesses may be used.
Joint, Split or Sole Custody?
The preferred outcome is joint legal custody; however, split and sole custody is also possible. Both parents should be willing to come up with a plan for how they will share physical custody; if not, they will have to comply with a court order. Going beyond the best interests of the child, the court should consider the physical accommodations of each parent.
For example, it may be that one of the parents is unable at the time to provide a home for the child (homeless, unemployed), so the other parent would likely get full physical custody. If it turns out that one parent doesn’t get custody, visitation can be worked out, unless it can be shown that the child’s welfare could be in danger with this choice. However, public or private facilities can be used for visits.
It is best for parents to work out the best situation for all involved at the earliest stage. One reason is that it will show the courts that each is willing to continue having both parents involved in the rearing of the child. Another reason is that modifications are generally not allowed until at least 2 years unless there is an emergency brought that the child may be in unsafe circumstances. Whimsical changes, for obvious reasons, are not encouraged. Bring a strong and compelling case if you want to make changes in any event, as the goal is to give the child as stable a life as possible.
A word of caution for grand-parents: the rule of thumb for child custody cases is to place the child with either or both parents. So if both parents are alive, grand-parents have to make a rather compelling case. In addition, if other relatives are willing and/or able to take care of the child, the grandparents are not the obvious choice, whether or not parent/s is/are alive. Here’s the breakdown.
When the parents are alive, the courts may consider granting custodianship to the grand-parents if the following factors are present:
Both parents are deemed unfit
Both parents agree to the grandparents taking over the parenting
Parent neglect or abuse (with documentation)
Drug or alcohol abuse in the child’s home
Mental illness of either or both parent and the other parent is unable or unwilling to be the guardian
To strengthen their case, grand-parents can show that they have acted like parents for at least a year. That could mean the child was living with them, or that they financially cared for the child before bringing a custody petition.
In cases where the custodial parent is deceased, the courts will seek to give guardianship to the other parent, regardless of his/her level of involvement prior. Alternatively, a close relative can be considered; so the grandparents are a bit further down the list. Common circumstances that make the courts prefer the grand-parents over other relatives are:
When the child has already been living with the grand-parent(s)
When the parent’s will names the grand-parent(s) as guardian(s)
The child wants to live with the grand-parent(s)
In addition, the age, health, and financial situation of the grand-parents are looked into. The welfare of the child is still the ultimate concern.
Contact Our Chicago Child Custody Attorneys
Child custody proceedings are sensitive and complex that's why it's important to consult your case with an experienced family law lawyer that can help you evaluate your options. If you don't, you may regret your decision for the rest of your life. Contact us today for a FREE case evaluation.