Illinois State Laws on Obtaining Sole Custody

By Mary Jane Freeman

If you're contemplating divorce or about to start the process, you may be feeling a bit uncertain or even overwhelmed, especially if you have children. However, knowing what to expect and understanding how to navigate the system can greatly reduce any stress you may be feeling. This is especially true if you intend to petition the court for sole custody of your children. In Illinois, the court will only choose this arrangement if it serves the best interests of your child.

Custody Defined

In Illinois, parents can only obtain sole custody or joint custody. The state no longer makes a distinction between legal custody, the right to make decisions concerning a child's welfare, such as decisions about religion, education and health care, and physical custody, where a child lives. Instead, the term "custody" represents decision-making authority only. So, if the court awards you sole custody, that means you are the only one who can make decisions concerning your child. However, if joint custody is awarded, you must share this responsibility with your child's other parent. Additionally, Illinois now refers to physical custody as "residential custody," and the parent who provides a home for the child is known as the custodial parent or residential custodian. Typically, the noncustodial parent is granted visitation and must pay child support.

Requesting Sole Custody

If you want sole custody of your child, you must petition the court for it. Illinois makes this easy by allowing you to make the request in your petition for divorce. You also need to submit a Child Custody Affidavit, known as a Uniform Child Custody Jurisdictional Enforcement Act Declaration in some counties. On this form you'll tell the court where and with whom your child currently lives as well as if there are any past or present custody cases involving your child. Once you file the necessary forms, you must inform your spouse of your petition for custody by having the sheriff serve him with a copy of the petition along with a summons. If your spouse does not agree with giving you sole custody, he can contest your petition by filing an answer within 30 days and the matter will be decided by the court after a hearing.

Divorce is never easy, but we can help. Learn More

Temporary Orders

After the divorce is filed, either you or your spouse may petition the court for a temporary custody order. This order will govern with whom your child will live during the divorce proceedings as well as how decision-making is to be allocated between you and your spouse during this time. Temporary custody orders only last until the divorce is finalized and a permanent order takes its place. It is not uncommon for courts to incorporate the terms of a temporary order into the permanent one, especially if the custody arrangement is working well. If you and your spouse are on friendly terms, you can always reach an agreement on your own and submit it to the court. If the court finds the terms satisfactory and in the child's best interests, the court will approve the order.

Burden of Proof

Illinois courts are reluctant to award sole custody. As a result, they typically only do so when one parent is unfit or the parents are incapable of working together when making decisions about their child. Since you are requesting sole custody, you have the burden of proving your spouse is unfit to share in the decision-making process. However, if you and your spouse have a history of not getting along or lack an ability to work cooperatively, this may not be necessary. On the other hand, if you are filing for sole custody because you plan to alienate your child from her other parent and the court picks up on this, it will likely see your actions as an abuse of the custody process and not award you sole custody. In fact, the court may even award custody to your spouse instead. You also take this risk if you are intentionally being uncooperative so it appears you and your spouse can't make decisions together.

Best Interests of the Child

Just as with temporary orders, divorcing spouses are free to reach their own agreement on custody. However, if they are unable to do so, the court will make the decision for them. In Illinois, as in all states, courts base this decision on what would be in the best interests of the child. The court won't make this determination blindly, but rather evaluate several factors to help inform its decision, such as the wishes of the child and parents, child's relationship with each parent and any siblings, child's adjustment to home, school and community, mental and physical health of the child and parents, willingness of each parent to foster and encourage a close relationship between the child and other parent, and whether there's any history of domestic violence or abuse.

Divorce is never easy, but we can help. Learn More
How to Petition for Sole Custody in New York
 

References

Related articles

Child Custody Options in Iowa

In Iowa, as in most states, child custody issues must be resolved before the court can issue a divorce decree. Depending on the circumstances of your case, the court may establish a sole or joint custody arrangement. For example, if you and your spouse get along and work well together, the court is likely to grant decision-making authority to both of you. This means you both have a say in your child's upbringing, such as where he goes to school and what extracurricular activities he participates in.

How to Get Full Custody of a Child in Texas

If you cannot agree on custody terms with your child's other parent and you desire full custody of your child, you will need to be prepared to engage in a custody battle. . Obtaining full custody in Texas is difficult as there is a presumption that joint custody will be most beneficial to the child. Before you begin, determine if you already have a custody order regarding your child. If you have not previously filed for custody you will need to seek a new custody order with the court. If you already have an custody order, you will seek to modify that order.

How to Get Child Custody If a Parent Refuses to Sign the Papers

Because child custody disputes can be contentious and stressful, family courts encourage parents to settle their disputes on their own. This not only shields the child from the stress of a custody fight, but it also allows the parents the autonomy to work out a custody plan that works with both parents' schedules and the child's needs. When one parent refuses to sign a proposed parenting plan or settle a custody dispute, however, you will need to use the court system to resolve your custody issues.

Get Divorced Online

Related articles

How to Apply for Sole Custody in Baltimore, Maryland

In some cases, sole legal custody or sole physical custody is in the best interests of a child. For a parent wishing to ...

How to Get Full Custody in the State of Alabama

A fight over child custody is often immensely stressful for both parents and children. Alabama recognizes two types of ...

How to Get Sole Custody of My Daughter in Pennsylvania

In Pennsylvania, having sole custody may indicate that you alone have the right to make important decisions regarding ...

How to Get Sole Custody in California Without a Lawyer

Ensuring that children are properly cared for when parents can no longer live together is at the forefront of every ...

Browse by category
Ready to Begin? GET STARTED