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What Are the Child Custody Laws in Illinois?

mother with boy sitting on couch at home

Determining child custody is often the most heated part of a divorce proceeding. Illinois family law establishes both the types of custody and custody arrangements available to parents, as well as providing a guideline for how family courts should decide upon custody in a divorce or other custody dispute. Read on to learn about child custody in Illinois, and call a qualified Chicago child custody attorney for help with an Illinois divorce or other family law matter.

Legal vs. Physical/Residential Custody and Decision-Making Authority

Historically, Illinois law distinguished between “legal” custody and “residential” or “physical” custody. Legal custody concerned the authority to make important life decisions concerning a child’s upbringing, such as decisions concerning the child’s education, medical care, and religion. Residential custody was concerned with where the children would live or spend the majority of their time. Physical custody also affects who will pay child support and how much support will be ordered.

In 2016, Illinois enacted a new set of family laws that modified these terms to reflect an evolving understanding of parenting. Now, courts and the law use the phrase “allocation of parenting time and responsibility” rather than “custody” or “visitation.” The new law also uses the terms “joint decision-making” and “sole decision-making” authority rather than “legal custody.”

Joint vs. Sole Authority

Parents can either share joint custody or have sole custody, concerning both legal and physical custody (or, in the modern parlance, with respect to decision-making authority and allocation of parenting time). For unmarried parents, the mother will have sole legal and physical custody of the child until paternity is established and the father petitions the court for some type of custody. Once paternity is established and a father petitions the court for custody rights, any custody disputes will be resolved essentially the same as if the parties were divorcing.

Establishing Custody Rights in a Divorce

Courts prefer parents to come to a custody agreement on their own, but if the parties cannot agree, then a court will ultimately have to decide. Typically, courts will grant joint decision-making authority to both parents, unless there is reason to believe one parent is not fit (such as if they are abusive, are addicted to drugs or alcohol, or are incarcerated for a crime). Both parents will thus share in the right and responsibility to make important decisions concerning the child’s life and upbringing.

However, under the current law, the court may order that a specific parent will have decision-making authority on particular issues, eschewing the old “all-or-nothing” approach of legal custody. One parent, for example, may be granted the right to decide where the child goes to school or whether they will receive a religious education.

The court will also have to decide residential custody or parenting time. For both parenting time and decision-making authority, the court will evaluate a variety of factors, weighing the best interests of the child in order to come to a decision. The factors, established by Illinois law, include things like where the child has resided up to this point, which parent made which sorts of decisions in the past, the income and ability of each parent to provide a home fit for the child, any history of abuse, any history of addiction, and other considerations.

Both parties in a custody dispute are required to file a proposed “parenting plan” establishing the rights and responsibilities of each parent, including both parenting time and decision-making authority. The parties can jointly file an agreed-upon plan, which the court will then choose whether or not to approve. If the parties file opposing plans separately, the court will weigh the statutory factors to make a final decision.


If you are dealing with child custody issues, divorce, spousal support, or any other family law matter in Illinois, contact the considered and effective Carol Stream family law attorneys at Johnson, Westra, Broecker, Whittaker & Newitt for a consultation on your case at 630-665-9600.

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