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Child Custody and the Role of Child Representatives

Custody in Illinois doesn't just refer to the parent a child primarily lives with. Rather, there are two kinds of custody in Illinois: physical and legal. Under those types of custody, there is also joint custody and sole custody. So what exactly does all of that mean? And how do things like child support and paying for higher educational costs factor in?

Physical Custody v. Legal Custody

The first distinction that is important to know is physical custody versus legal custody. Physical custody refers to which parent the child primarily resides with. Conversely, legal custody is the right to make important decisions regarding the child, such as which schools they attend, weighing in on major medical decisions, or under which religious faith, if any, the child is raised.

Joint Custody v. Sole Custody

Joint custody means that the parents will share in all major decisions affecting the child. Sole custody means that one parent, namely the custodial parent, is responsible for all major decisions affecting the child. However, it is important to note that there can be visitation orders in place for the non-custodial parent whether there is joint or sole custody.

Under Illinois law, parents can have joint legal custody while the child primarily resides with only one parent and sees the other infrequently. Conversely, one parent can have sole legal custody, but have equal amounts of parenting time as the other parent. Thus, the determination of joint or sole custody will not necessarily affect how much time the child spends with either parent. In fact, the non-custodial parent has a right to "reasonable" visitation with their child, and since there are no guidelines that define what that means, it will always be a case-by-case determination.

Making a determination for joint custody is tricky in Illinois. There is no presumption that joint custody is in the best interest of the child, however there is a presumption that the involvement and cooperation of both parents in raising the child is in the best interest of that child. Thus, Illinois courts generally hope for joint custody, but will only award it if both parents can consistently demonstrate their ability to work together to raise their child.

Making Custody Decisions

All decisions regarding custody of a child revolve around one central question: what is in the best interest of the child? There are some factors Illinois courts employ when making these determinations. These factors are outlined in 750 ILCS 602, and include things such as the wishes of the parents and children, the adjustment of the child to his home, and the health of all involved parties.

One very important factor is the ability of the parents to cooperate in a joint custody decision. For example, a 2014 case, In Re Marriage of Iqbal, awarded sole custody to a mother despite the father's close relationship with his children because the conflict between the parents was so great it seemed likely the father would attempt to interfere with the mother's relationship with her children.

Support Obligations

Generally, the parent with whom the child resides is entitled to child support from the other parent. Illinois has minimum guidelines in place that automatically determine a support obligation based on a set percentage of the paying parent's net income. However, support obligations aren't just for the custodial parents. Under a 2012 case, In Re Marriage of Turk, the Illinois Supreme Court held that the custodial father has to pay the non-custodial mother child support because the father's income was significantly greater than the mother's and she had visitation rights that placed the children in her care for periods that were comparable to the father's. Thus, even though it's more likely that the non-custodial parent will be the one paying support to the other, it's not always a guarantee and will again rest of the facts of each case.

For more information on how the courts calculate child support obligations, click here.

Child Representatives

In particularly contentious cases, judges will sometimes appoint an attorney to represent the child's interests in court under 750 ILCS 506. These attorneys are called Child Representatives. A Child Representative's duties are to advocate for the child's best interests based on their assessment of the case and facts surrounding it. They must meet with the children and the parents, and generally investigate the facts of the case. Their goal is to encourage settlement of the case, and Child Representatives will generally employ alternative dispute resolution techniques to achieve this goal.

Under the statute, both parents are responsible for the costs, which are filed with the court every 90 days. The court will then order payment of the fees. The payment may not always be spilt evenly between the parties, but will instead depend on the income of the parties and any other relevant factors. Thus, in addition to child support obligations a parent may need to pay in a case, it is possible there will be additional fees for a Child Representative.

If you are involved in a custody dispute, hiring an attorney will give you your best chance at a favorable outcome. The Law Offices of Van A. Schwab can help. For more information or to schedule a consultation, call us at (312) 372-4569.

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