Probably the most difficult aspect of any legal case is the question of child custody. Section 602 of the Illinois Marriage and Dissolution of Marriage Act requires a court to determine custody in accordance with the best interest of the child. The court shall consider all of the following:
- The wishes of the child’s parent or parents regarding his custody;
- The wishes of the child regarding his custodian;
- The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school and community;
- The mental and physical health of all individuals involved;
- The physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
- The occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
Often, couples can agree that a child will live primarily with one parent. However, the court must decide if one party shall be granted sole custody or if the parties will have joint custody of the child. If a parent has sole custody of a child, that parent essentially can make all decisions regarding the child. What if the parents agree that the child will remain primarily with one parent, but the other parent insists upon joint custody? If the parties have joint custody of the child, the court will designate one parent as the residential parent for the child, and the parties will make major decisions involving the child jointly. Generally, this involves larger issues surrounding education, health and religious upbringing. Under a joint parenting agreement, the residential parent for the child makes the typical day-to-day decisions affecting the child.
If joint custody is envisioned, the parties will need to enter into a Joint Parenting Agreement, which will govern specifically how joint custody will operate in their case. When is joint custody suitable? Our courts have held that joint custody is proper when the parties can communicate reasonably regarding issues involving the child. Although many parents cannot communicate and have decided to divorce, many parents are still able to discuss issues involving their child. What I advise my clients is that joint custody, in the long run, is better for both the parents and the child if the parents can communicate. Parents who communicate after a divorce are not only helping themselves, but are helping their child adjust to the divorce. Parents who continually fight before, during, and after a divorce put a tremendous amount of stress on a child, and this is obviously unhealthy. However, I also tell my clients, if they cannot cooperate regarding the child with the other parent, entering into a Joint Parenting Agreement is not recommended. Parties simply incapable of cooperating regarding the child are setting themselves up for failure and future conflicts if he or she bind themselves to a Joint Parenting Agreement.
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Email our Chicago Child Custody Attorneys or call our Chicago office at 312.360.0250 or our Skokie office at 847.329.0101 to help you with your child custody case.