Illinois State Laws on Obtaining Sole Custody

By Mary Jane Freeman

Portrait of mother with daughter

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If you're contemplating divorce or about to start the process, you may be feeling a bit uncertain or even overwhelmed, especially if you have children. However, knowing what to expect and understanding how to navigate the system can greatly reduce any stress you may be feeling. This is especially true if you intend to petition the court for sole custody of your children. In Illinois, the court will only choose this arrangement if it serves the best interests of your child.

Custody Defined

In Illinois, parents can only obtain sole custody or joint custody. The state no longer makes a distinction between legal custody, the right to make decisions concerning a child's welfare, such as decisions about religion, education and health care, and physical custody, where a child lives. Instead, the term "custody" represents decision-making authority only. So, if the court awards you sole custody, that means you are the only one who can make decisions concerning your child. However, if joint custody is awarded, you must share this responsibility with your child's other parent. Additionally, Illinois now refers to physical custody as "residential custody," and the parent who provides a home for the child is known as the custodial parent or residential custodian. Typically, the noncustodial parent is granted visitation and must pay child support.

Requesting Sole Custody

If you want sole custody of your child, you must petition the court for it. Illinois makes this easy by allowing you to make the request in your petition for divorce. You also need to submit a Child Custody Affidavit, known as a Uniform Child Custody Jurisdictional Enforcement Act Declaration in some counties. On this form you'll tell the court where and with whom your child currently lives as well as if there are any past or present custody cases involving your child. Once you file the necessary forms, you must inform your spouse of your petition for custody by having the sheriff serve him with a copy of the petition along with a summons. If your spouse does not agree with giving you sole custody, he can contest your petition by filing an answer within 30 days and the matter will be decided by the court after a hearing.

Temporary Orders

After the divorce is filed, either you or your spouse may petition the court for a temporary custody order. This order will govern with whom your child will live during the divorce proceedings as well as how decision-making is to be allocated between you and your spouse during this time. Temporary custody orders only last until the divorce is finalized and a permanent order takes its place. It is not uncommon for courts to incorporate the terms of a temporary order into the permanent one, especially if the custody arrangement is working well. If you and your spouse are on friendly terms, you can always reach an agreement on your own and submit it to the court. If the court finds the terms satisfactory and in the child's best interests, the court will approve the order.

Burden of Proof

Illinois courts are reluctant to award sole custody. As a result, they typically only do so when one parent is unfit or the parents are incapable of working together when making decisions about their child. Since you are requesting sole custody, you have the burden of proving your spouse is unfit to share in the decision-making process. However, if you and your spouse have a history of not getting along or lack an ability to work cooperatively, this may not be necessary. On the other hand, if you are filing for sole custody because you plan to alienate your child from her other parent and the court picks up on this, it will likely see your actions as an abuse of the custody process and not award you sole custody. In fact, the court may even award custody to your spouse instead. You also take this risk if you are intentionally being uncooperative so it appears you and your spouse can't make decisions together.

Best Interests of the Child

Just as with temporary orders, divorcing spouses are free to reach their own agreement on custody. However, if they are unable to do so, the court will make the decision for them. In Illinois, as in all states, courts base this decision on what would be in the best interests of the child. The court won't make this determination blindly, but rather evaluate several factors to help inform its decision, such as the wishes of the child and parents, child's relationship with each parent and any siblings, child's adjustment to home, school and community, mental and physical health of the child and parents, willingness of each parent to foster and encourage a close relationship between the child and other parent, and whether there's any history of domestic violence or abuse.