Couples with children in Illinois going through a divorce naturally want to know how child custody will be resolved during the course of the divorce proceedings. Though child custody is a thorny, complicated issue, we will attempt to clarify some of the main legal issues related to child custody in your custody case.
Child Custody and Visitation
First, we will define some of the terminology we will be using throughout our explanation of legal issues related to child custody.
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.” In our discussion, for purposes of clarity and understanding, 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, but not limited to:
- 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 healthcare
- 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 through an agreement between the involved parties
It’s important to note here that a man’s signature on a birth certificate, by itself, 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 (VAP). Typically he is given both the VAP and the Birth Certificate at the same time, so it is common that a man who signs one would have signed the other. His signature on the VAP affirms that he is the legal and biological father of the child.
If a VAP was not signed at the time of birth and the paternity of the child is contested, the court may order a DNA test conducted to determine paternity.
Child Support and Child Expenses
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 which 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, in fact, it is unlikely a court would award equal parenting time in a contested case. The court will weigh many factors, including the Parenting Factors mentioned above, in rendering its decision. For something like extracurricular activities, for example, the court may well consider what is referred to as Past Care. That would mean the court would consider what role a parent played in the child’s extracurricular activities in the past.
Decision Making
Finally, there is the matter of making decisions on behalf of the child. For routine matters, such as whether to attend a religious service, the decision will probably be made by the parent while they’re exercising their parenting time – referred to as “day-to-day decisions.” But potentially life-changing decisions will be made by the parent with decision-making authority in that area of the child’s life. For example, a life-changing decision would be something like what religious faith, if any, the child is to be raised in.
Rockford, IL Family Lawyers
From this brief summary, it should be apparent that child custody in divorce and paternity cases is an enormously complex issue. If you or anyone you know needs a child custody attorney in Rockford, Illinois we hope you will contact our law firm for an initial consultation of your case.
Our team of family law attorneys with years of experience will work with you to help you build an effective and efficient legal strategy, and we urge you to contact us today to learn more about the expert legal assistance our law firm can provide.
