One of the most contentious areas of family law is child custody determinations, which is technically known as the allocation of "parental responsibility" under Illinois law. Parents naturally have strong emotions about where their child will spend most of his or her time and who will be in charge of his or her upbringing.
Ideally, parents can come together and agree on a parenting plan that spells out each parent's responsibilities. When that isn't possible, however, the court will step in an allocate decision-making authority and parenting time according to whatever the judge thinks is in the best interests of the child.
What does the judge use to make that decision? There are a number of different specific factors that are used under the law in Illinois, including:
1. Why is each parent wanting control?
Is there a good reason for the dispute or are the parents simply being difficult with each other? A good reason might include the distance the parents live from each other or a sincere belief that the other parent is not capable of caring for the child.
2. What are the child's wishes, taking into account the age and maturity of the child involved?
There's no guarantee that the child's wishes will prevail, since the judge has to consider all the other factors as well.
3. How is the physical and mental health of each parent? Is one parent less physically or emotionally able to nurture the child at this stage?
4. Can the parents co-operate?
Is one parent unwilling to facilitate visitation or a relationship between the child and the other parent for some reason? That's usually a bad sign to the judge.
5. Which parent has been the child's primary caretaker and means of emotional support up to this point?
Why has the situation been arranged this way? Is one parent simply more nurturing than the other?
6. Are there significant issues with one parent, like a history of drug or alcohol addiction, violence, or sexually-based offenses?
That generally will prejudice a court's decision heavily against that parent.
While these are not the only factors the judge can -- and will -- take into consideration in a custody case, they can help you understand what the judge wants to see. You can help your case by maintaining a flexible attitude and willingness to work with the other parent on custody -- even when he or she won't work with you.
Source: Illinois General Assembly, "750 ILCS 5/602.7," accessed May 25, 2018