Because custody proceedings are emotionally charged and involve high stakes, they can be particularly nasty. Illinois has established several laws to help determine custody and mitigate the damage a legal battle can cause to children. Illinois was one of the first states to abolish gender preferences in custody proceedings, meaning parents have equal rights to their children.
Best Interests Standard
All U.S. states, including Illinois, use the "best interests of the child" standard in making custody determinations. Factors a judge will consider include the environment each parent provides for the child, the physical and emotional stability of each parent, the willingness of each parent to help the child maintain a relationship with the other parent, the child's overall adjustment and any history of domestic violence or child abuse.
When the child's parents are not married at the time of the child's birth, the mother is the sole custodian until the father petitions the court to establish paternity. If the father signed the birth certificate immediately after the child's birth, he is the child's legal father and will need to submit a voluntary acknowledgment of paternity to the court. Both parents can also submit a joint stipulation to the father's paternity. A father has no custodial rights until he acknowledges paternity and becomes the child's legal father. After paternity is established, the father may petition for custody or visitation.
For much of the 20th century, the "tender years doctrine" was the prevailing norm in custody cases. This doctrine dictated that, unless a mother was proven unfit, she should be the sole or primary custodian of babies and very young children. In addition, fathers were not entitled to overnight visitation with young children. Illinois abolished this standard in the 1970s and now both fathers and mothers are entitled to equal time with their children.
In some states, homosexual parents face discrimination in custody hearings. Their sexuality may also be used against them by a heterosexual parent. However, the Illinois Court of Appeals has ruled that sexual orientation should not be considered in custody determinations; homosexual parents are as entitled to child custody as heterosexual parents. Because many parenting plans prohibit overnight visits with lovers, however, homosexual parents may be prohibited from allowing their lovers to spend the night when the child is present.
Illinois's state policy is to promote family continuity and an ongoing relationship between both parents and their children. Consequently, if one parent wishes to move out of state, the other parent may petition the court for a relocation hearing. The court will consider the parent's motives in moving, how the move might affect visitation and what alternative visitation schedules are possible. When a parent wants to move far away but remain in the state, the court will not automatically have a hearing. However, a move can be considered a material change in the child's conditions; thus, give either parent the right to seek a change in the parenting plan.