Couples with children in Illinois going through a divorce naturally want to know how child custody will be resolved during the course of their divorce proceedings. Though child custody is an enormously complicated issue, we will attempt to clarify some of the main issues for you, including which state’s court has jurisdiction in your custody case.
Court Jurisdiction in Interstate Divorce Cases
When parents living in Illinois divorce, they will receive a custody order from the Family Court as part of the divorce settlement. Things can get somewhat complicated, however, if the parents live in different states, or if one parent has recently moved from Illinois to another state.
To resolve the question of which state’s court has jurisdiction in these kinds of cases, Illinois has joined many other states in adopting the Uniform Child Custody Jurisdiction and Enforcement Act, or for short, the Uniform Child Custody Act (UCCA). Among its provisions, this law sets the rules determining which state is the child’s home state in resolving custody matters.
Under the UCCA, Illinois courts have jurisdiction in custody matters if:
- The child has lived in Illinois for the past six months, or since their birth if they are less than six months old.
- The child now lives out of state, but lived in Illinois in the past six months, and one of the child’s parents still resides in Illinois.
- No other state is currently the child’s home state, or the child’s home state has deferred to Illinois and declined to exercise jurisdiction. In these situations, the child and at least one parent must have significant connections to Illinois, or there exists in Illinois substantial evidence related to the child’s care, protection, training, and personal relationships.
Child Custody and Visitation
Beyond matters of court jurisdiction, it should also be noted that both the recently enacted Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act use the terms “parenting time” and “decision making” rather than the older term “custody.” On our pages, for purposes of clarity and understanding, however, we will continue to use the older and widely understood terms “custody” and “visitation.”
In the Family Law Courts of Illinois, child custody and visitation are often among the most important considerations. The first priority of the courts is ensuring the best interests of the children in allocating parenting rights, responsibilities, and time. These three – rights, responsibilities, and time – in turn, can be broken down into several different subjects including:
- Residential custody
- Regular parenting schedules
- Vacation parenting time
- Summer and holiday parenting schedules
- Babysitting and right of first refusal
- Parenting exchange location
- Parenting exchange times
- Parenting time supervisors
- Decision making authority for health care
- Decision making authority for extracurricular activities
- Decision making authority for education
- Decision making authority for religious matters
- Child tax credits
These subjects are relevant in both Divorce and Paternity cases, and the final court order will also consider the Parenting Factors that we discuss in detail elsewhere.
In addition, it’s also essential to remember there are substantial differences between a straightforward divorce case involving children and a paternity case.
Divorce vs. Paternity
In a divorce case involving children, the initial assumption of the court is that if children were born during the marriage, the husband is their legal and biological father. There can be, of course, exceptions, but that is the initial position of the court.
In cases involving disputed paternity, the court must determine who the legal and biological father of the children is before rendering a final decision. This determination is made in a number of ways including:
- Voluntary Acknowledgement of Paternity (VAP)
- DNA testing
- Establishment of paternity though agreement between the involved parties
It is important to note here that a man’s signature on a birth certificate is not considered proof that he is the father of the child. In the case of a child born to an unwed couple, the man in question is given the opportunity to sign a Voluntary Acknowledgement of Paternity affirming that he is the legal and biological father of the child.
If a VAP was not signed at the time of birth and paternity of the child is contested, the court may order a DNA test conducted to determine paternity.
Custody and Visitation
Whether it is a regular divorce or a paternity case, in addition to the aforementioned factors, the court will also consider Child Support and Child Expenses in rendering its decision. Further, these considerations can be broken down into Parenting Time and Decision Making for each parent, and these will be extremely vital components of the court’s final decision.
In Illinois, there is no guarantee that Parenting Time and Decision Making will be equally split between the parents. The court will weigh many factors, including the Parenting Factors mentioned above, in rendering its decision. For extracurricular activities, for example, the court may well consider what is referred to as Past Care, namely what role a parent played in the child’s extracurricular activities in the past.
Day-to-Day Decision Making
Finally, there is the matter of making daily decisions on behalf of the child. For routine matters, such as, for example, whether to attend a religious service, the decision will probably be made by the parent while they’re exercising their parenting time. But for potentially life-changing decisions – what religious faith the child is to be raised in – will be made by the parent with decision making authority in that area of the child’s life.
Child Custody – An Enormously Complicated Issue
From this brief synopsis, it should be apparent that the legal issues in child custody cases are enormously complex. And if you or anyone you know needs a child custody attorney in Rockford, Illinois we highly recommend that you contact the law firm of Crosby & Crosby for an initial free consultation of your case.
Our team of experienced family law attorneys will work with you to help you build a successful legal strategy, and we urge you to contact us today to learn more about the expert legal assistance we can provide.