Types of Custody
The state of Illinois recognizes two basic forms of child custody: joint custody and sole custody. Joint custody requires the parents discuss and cooperate on all significant issues regarding how their child is raised. This includes how the child is educated, provided health care and religiously reared. With sole custody, one parent can make all of the decisions for the child without having to consult with the other parent. Joint custody does not mean equal parenting time. One parent is typically designated as the "residential" parent with whom the child resides. The other parent pays support to that parent. If you are going to file a motion for temporary custody, you must determine the type of custody you want.
Best Interests of Child
In Illinois, as in all states, custody is determined by what is in the "best interests of the child." Before filing a motion for temporary custody, you must evaluate if it is in the best interests of the child for you to have custody. The court will consider what the child wants, the child’s relationship with both parents, siblings and the community in which you live, the living situation of both parents, the mental and physical health of both parents, and whether the child will continue to attend the same school based on whether he lives with you. If the other parent objects to your motion for temporary custody, the burden of proving it is in the best interests of the child for you to have custody will fall on you. You must also determine if you have the right to petition for temporary custody. Generally, only a child’s parents can have custody. If you are a non-parent who wants to obtain temporary custody, the child must have lived with you on a non-temporary basis and the living situation cannot be due to the parents being involuntarily absent.
It is always best to approach the other parent and attempt to come to an agreement regarding temporary custody. Many times, both parties agree regarding custody. If you and the other parent do agree on custody, prepare a joint parenting agreement. The agreement must identify both parents and the children involved. The agreement should address how the children are to be educated, all health care issues, religious training, and where the children will reside. Both you and your spouse should review the completed agreement, then sign and date it. You should submit it to the court handling your divorce, or if a custody order is already in place, to the court that issued the original custody order.
If you and the other parent cannot agree on custody, you can simply file a motion for custody at the circuit court where the divorce hearing is being held, or at the court that issued the original custody order. Ask the clerk for a blank motion and notice of motion form. In the body of the motion, detail all the reasons why you should have temporary custody and the type of custody you want. Be sure to include all factors identified as elements of the “best interests of the child” that support why you should have custody of the child. Ask the clerk how much time you need to give the other side to prepare, and then choose an appropriate date for the hearing that coincides with the court's schedule. Sign both the notice of motion and motion, and then prepare an additional three copies of each. Give all copies of the documents to the clerk of court. The clerk will stamp all the documents, certifying its receipt, and keep the originals. Either personally deliver or send by certified mail a copy of the notice and motion to the other party. If the other party has a lawyer, send the documents to her.