Primary Parent Divorce Laws of Illinois

by Elizabeth Rayne
Often the primary caretaker becomes the residential custodian in Illinois.

Often the primary caretaker becomes the residential custodian in Illinois.

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In Illinois, both parents have the right to spend time with their children following a divorce. However, it is common for one parent to have primary or residential custody, while the other parent has visitation rights. In order to avoid penalties from the court, the residential parent should be careful to follow the visitation order.

Custody Overview

In Illinois, when courts use the terms joint or sole custody, they are referring to legal custody -- that is, the ability to make major decisions on behalf of the child. With joint custody, both parents have a say in major decisions affecting the child, such as decisions regarding health care, education or religion. On the other hand, one parent may be awarded sole custody, meaning only he has the authority to make such decisions for the child. Neither joint or sole custody refer to where the child lives. Instead, the parent with whom the child primarily lives is referred to as the residential custodian.

Shared Residential Custody

Courts in Illinois are reluctant to award shared residential custody except in rare circumstances. Most of the time, the child will primarily live with one residential parent while the other parent has visitation. Courts have found that shared residential arrangements are often impractical and stressful for the parents and the children. Particularly for young children, courts assume it is in a child's best interest to have a fixed and permanent home. However, a court may award shared residential custody if the child is older, parents live close together and it is in the best interests of the child.

Custody Determinations

When deciding the custody and visitation arrangement, Illinois courts base decisions on what it is in the best interests of the child. The court considers any relevant factors, including the wishes of the child, the relationship the child has with each parent, and the child's connection with his school and community. The court will also consider any evidence of domestic violence, or threats of violence, that involved the spouse or children. In many cases, the court awards residential custody to the parent who served as the primary caretaker.

Visitation

Except for rare circumstances in which the child's physical or mental health would be put in danger, courts in Illinois generally award visitation time to the non-residential parent. The schedule is highly dependent on the circumstances of your case, but courts generally allow visitation every other weekend, alternating holidays and after school a few days during the week. If the residential parent denies visitation without justification, the other parent may file an action to enforce the visitation order with the court. The court will hold a hearing for the parents to present their side of the story; the court has discretion to modify the visitation order or have one parent make up time for missed visitation. In more severe cases of visitation interference, the court may hold the residential parent in contempt, which could lead to a driver's license suspension or even jail time.