In Illinois, when you divorce your spouse, the court will establish a custody and visitation order as part of the divorce decree. Typically, visitation rights are granted to the parent with whom the child does not live most of the time; however, visitation will only be awarded if it is in the child's best interests. Although you can leave it up to the court to decide your family's custody and visitation arrangement, you also have the right to create your own parenting plan, if you and your spouse agree.
Custody Decided First
Before an Illinois court can decide on a visitation schedule, it must first determine the type of custodial relationship you and your spouse will have once the divorce is final. In Illinois, parents may be awarded sole or joint custody. Known as legal custody in other states, this is a parent's right to make major life decisions concerning a child's welfare, such as the religion the child will practice, the school he will attend and the medical treatment he will receive. Sole custody is when only one parent makes these decisions, and joint custody is when both parents share this responsibility. If the parents have joint custody, one of them is usually granted residential custody, which means the child lives with that parent most of the time. The nonresidential parent typically has visitation rights and pays child support.
Custody and Visitation Based on Child's Best Interests
The court decides custody based on the best interests of your child. To that end, it looks at a variety of factors set forth in Illinois law. These include the wishes of the parents and child; the relationship between child, parents and any siblings; the mental and physical health of all parties; the child's adjustment to home, school and community; willingness of each parent to encourage the other parent's relationship with the child; and any history of abuse, domestic violence or sexual offenses. The court will also consider these same factors when determining whether to grant a parent visitation rights.
Visitation Awarded to Nonresidential Parent
If the court grants your spouse residential custody, it will award you reasonable visitation rights, unless the court determines that visitation would place your child in danger. That danger can be of a physical, emotional, moral or mental nature. For example, if you beat your child or his other parent, the court will likely deny you visitation or simply limit you to supervised or restricted visits only. Once the court grants you visitation rights, it will set out in the divorce decree when you can spend time with your child and for how long. For example, the decree may state that you can spend one evening during the week with your child and have overnight visits during the weekend, certain holidays and on special occasions. If you and your spouse get along especially well, the court may be more liberal and not set a specific schedule, leaving it up to you and your spouse to set a visitation schedule, as needed.
Create Your Own Parenting Plan
Although you are divorcing, you don't have to leave custody and visitation decisions up to the court. You and your spouse are free to create your own parenting plan and submit it to the court. If the terms are satisfactory and serve the best interests of your child, the court will approve it and incorporate the terms into your divorce decree. For this reason, the plan should be as detailed as possible and include such things as visitation schedules during the school year, holidays and summer vacations, drop-off and pick-up times and locations, and how schedule changes will be handled.