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Overview Of Changes To Child Custody Laws In Illinois

Illinois substantially altered the factors that courts may rely on to ascertain what is in the best interests of the child regarding child custody disputes. In 2015, Illinois passed Senate Bill 57, a major revision to the Illinois Marriage and Dissolution of Marriage Act, eliminating the concepts of “custody” and visitation” and replacing them with “parental responsibilities” and “parenting time.” This is the most significant alteration to Illinois custody and visitation rules in 37 years.

The Legislature justified the changes primarily to adjust parenting laws to be less combative. Under the old dynamic, one parent would win “custody, over” and the other may “visit” the child is a harsh way of dealing with these situations. Furthermore, it was argued that the old rules encouraged winners and losers, rather than shared responsibilities. The changes were designed to encourage more cooperation between parents.

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infographic_Changes to Illinois Child Custody laws


Child Custody and Visitation

Child custody and visitation (now known as parental responsibilities) are the series of rules that govern how parents, who are no longer together, assign their respective child rearing responsibilities and physical time. There are two types of custody: legal and physical. Legal custody is the ability of one parent to make decisions on behalf of the child. Physical custody is primary physical custody of the child.

Visitation refers to the physical time that a parent, who does not have physical (or “primary”) custody can share with their child. It is possible for a parent to have legal custody of the child but no physical custody. In these situations, one parent must be consulted on decisions regarding the upbringing and care of the child (i.e. where they might go to school or doctor appointments). However, that parent lacks primary custody, therefore, they were forced to rely on a visitation schedule.

The Old Law

Under the old law, Illinois divided custody into joint and sole custody. The difference between these two arrangements is determined by which parent can make final decisions regarding major decisions on behalf of the child. Classic examples would include:

  • The religion of the child;
  • Choice over health care;
  • Education decisions; and
  • Extracurricular activities.

Under joint custody, both parents would share decision-making authority. Conversely, in a sole custody arrangement, one parent retains ultimate authority over these decisions.

Additionally, if one parent is awarded sole custody, then the court would order a visitation schedule. The visitation schedule was a mandatory schedule in which the parent with sole custody must transfer the child to the other parent for a set period of visitation. The arrangement was up to the parents and the court, it could be a few days a week, every other weekend or only holidays. The court would determine the schedule based on what is in the best interests of the child.

The New Law

Under the new law, Illinois eliminated the “joint” and “sole” custody dichotomy. Instead, the court assigns “parental responsibilities.” Under the old system, either one or both parents shared in all decisions. Under the parental responsibility system, the court assigns the subjects to the parents. For instance, a court may determine that one parent can decide the religious upbringing of the child, while the other may make decisions regarding education and extracurricular activities.

Under the new law, Illinois eliminated “visitation” and replaced it with “parenting time.” Parenting time is now determined solely by what is in the best interests of the child. Thus, it is possible for the court to require both parents to share parenting responsibilities but restrict parenting time to one parent. However, the new law does require (with few exceptions for safety) that, if one parent is not granted substantial parental responsibilities, then the court should award reasonable parenting time.

Best Interests of the Child

Parents may, if they can agree, determine their own responsibilities and enter into a parenting agreement. If the parents cannot agree, the court will rule based on what is in the “best interests of the child.” The court may, but is not required, to rely on the following list of factors:

  • The ability of the parents to cooperate;
  • The likelihood that conflict between the parents will affect their ability to share in decision-making responsibilities;
  • The wishes of the child (this factor is given more weight the older and more mature the child);
  • The mental and physical health of all respective parties;
  • The ability of the child to adjust to their school, community, and home;
  • Past parental involvement in raising the child;
  • The wishes of the parents;
  • Prior parenting agreements;
  • The distance between the homes of the parents and difficulty of transporting the child;
  • The willingness of a parent to encourage a positive relationship between the child and the other parent.

The court may also rely on any other factor that it deems necessary.