When making a decision that affects the well-being of the child, such as custody or visitation, the primary factor that will determine the child’s placement is the frustratingly vague “best interests of the child standard.”
The standard isn’t vague simply to make your lives hell. It is left open because the family law court is more of a court of equity, meaning the judge makes decisions based on principles of fairness and intuition, instead of the more rigid court of law principles used in criminal cases.
Fortunately, Illinois minimizes the confusion by listing some relevant factors to be considered:
- The wishes of the child's parent or parents;
- The wishes of the child;
- The child's relationship with his parents, siblings, and any other people that will affect his interests, such as stepparents or live in relatives;
- The child's adjustment to his home, school, and community;
- The mental and physical health of everyone involved;
- Any evidence of physical violence from either parent, whether towards the child or towards others;
- Any history of domestic violence or abuse, whether directed towards the child or towards others;
- The willingness and ability of each parent to facilitate a relationship between the child and the non-custodial parent;
- Whether one of the parents is a sex offender;
- The terms of a parent's military family-care plan, if applicable.
This isn't the only evidence that the judge will consider, but since these are listed specifically, they will be the predominant factors.
The statute also encourages the involvement and cooperation of both parents in regards to the child's upbringing, unless there have been domestic violence incidents. Note that there is no presumption in favor of either the mother or father. At least in theory, they should be on equal footing.
In addition, if you are a stepparent seeking custody, you are not completely out of luck. Under Section 601, stepparents can seek custody if it is in the "best interests" of the child. However, there is a presumption in favor of the natural parent that must be overcome.
- Find a Chicago Family Law Attorney (FindLaw)
- Who Gets Custody (FindLaw's Learn About the Law)
- Getting Custody FAQ (FindLaw's Learn About the Law)
- The Quickie Divorce ... Freedom via Uncontested Dissolution (FindLaw's Chicago Family Law Blog)