Some of Illinois’s divorce laws regarding children have been in place since the mid-1980s. Society has changed a great deal since then, but Illinois has been somewhat slow to adapt its legislation to keep up with the times. In some respects, the state's guidelines regarding custody, visitation and child support lag behind the rest of the nation. This makes them simpler to understand, but they may not always be fair.
Illinois is one of only 12 states that still calculate child support according to a formula called the percentage-of-income model. The formula begins with the court determining the overall income of a non-custodial parent. Includable sources of overall income can vary a great deal from judge to judge. Some judges will include disability or pension payments, while others will not. After the court ascertains the non-custodial parent’s income, he’ll pay a flat percentage of that in child support, depending on the number of children he’s supporting. If he supports two children, he’ll pay 28 percent. If he has four children, he’ll pay 40 percent. The formula does not factor in the custodial parent’s income, as most states do, nor does it consider how much parenting time the non-custodial parent has with his children. If his children live with him 50 percent of the time, he’ll pay the same amount in child support as he would if he saw them only once a month.
Illinois essentially recognizes only one kind of custody: legal custody. Legal custody is when a parent has the right to make the important decisions regarding her child’s welfare, such as religion, medical care, schooling and housing. It does not address how much time a child spends with each of her parents. The court won’t force joint legal custody -- called joint custody in Illinois -- on parents. If they request it, the court will usually award it, but a judge can't order joint custody without a request from the divorcing parents. Absent a request, the court will order sole legal custody -- called sole custody in Illinois -- to one parent, and only that parent can make decisions regarding the child.
Even if a child divides her time evenly between her parents’ homes, under Illinois law, she lives with one parent and visits with the other. The “other” parent is the one who pays child support. When parents request joint custody, Illinois law obligates them to submit a parenting plan to the court, detailing who the residential parent will be and who will have visitation -- and by extension, pay child support. The plan should also explain when the child will spend time with each parent, including a weekly or monthly schedule, holidays and vacations. Parents may also submit a parenting plan to the court when they don't request joint custody or joint decision-making powers. If they can’t agree on one, Illinois law obligates them to attend mediation before the court will grant their divorce. If parents still can’t come to an agreement, the court will involve a custody evaluator. The custody evaluator works for the state, not the parents. He’ll assess the family dynamics and make a recommendation for custody to the court. Judges aren’t obligated to rule in accordance with the evaluator’s suggestions, but they often do.
Changes to Legislation
The Chicago Tribune reports that the Illinois legislature began the process of revamping its child support laws in late 2011. However, at the time of publication, the old legislation is still in effect and it’s unclear if the new legislation will pass into law. If it does, Illinois will join 38 other states in calculating child support in such a way as to factor in a non-custodial parent’s parenting time as well as the custodial parent’s income.