Child Custody

The term “child custody” is no longer used under Illinois law. When parents divorce, they divide legal custody (now called parental responsibilities) and physical custody (now called parenting time). An unmarried mother has sole custody until the father establishes paternity. Child custody laws are designed to determine the best interests of the child.

What is the difference between legal and physical child custody?

Legal custody, or parental responsibilities, is the right to make crucial decisions affecting the child. These decisions may include what religion to raise the child in, where the child will attend school and any major medical decisions. Physical custody, or parenting time, refers to where the child is actually living. Ultimately, a judge will determine the allocation of parental responsibilities and parenting time based on the child’s best interests.

How is child custody determined in Chicago and North Shore?

Agreement on a custody arrangement

When a couple with children decides to divorce, the first step is to try and arrive at a custody arrangement on their own. This process often involves the assistance of a child custody lawyer representing each party. If the parents are able to come to an agreement, they can design a joint parenting plan that outlines each parent’s parental responsibilities and parenting time.


When parents cannot agree on a custody arrangement, they attend court-ordered mediation. These mediation sessions are confidential and non-binding. They are conducted by a neutral, certified mediator who helps the parents communicate to try to reach an agreement.

Court ruling

If, after mediation, the parents cannot agree on child custody, the case goes back to court for the judge to decide. The judge rules on custody based on the best interests of the child. Awarding parental responsibilities and awarding parenting time are addressed separately under Illinois statutes, although the factors the court considers are similar for both.

What factors do family courts consider in awarding child custody?

Even when parents reach an agreement on a custody arrangement, the judge ultimately determines what is in the child’s best interest. Factors the courts consider in determining legal and physical custody include:

  • The needs and wishes of the child
  • The wishes of each parent
  • Any previous agreements about decision-making or caretaking of the child
  • Past participation of each parent in making important decisions
  • Time each parent spent caring for the child in the previous two years
  • Mental and physical health and capacities of the parents and the child
  • Child’s adjustment to home, school, and community
  • Child’s relationship with parents, siblings, and other individuals
  • The ability of both parents to cooperate and make decisions for the child
  • The ability of each parent to support and encourage a positive relationship with the other parent
  • The ability of each parent to prioritize the needs of the child
  • Distance and cost of transportation between the two parents’ homes
  • Terms of a military family-care plan for either parent
  • Any history of threats of physical violence, acts of physical violence, or abuse toward the child or another household member
  • Whether either parent is a convicted sex offender, the nature of the offense, and the resulting treatment

Does remarriage affect child custody?

When a divorced parent remarries, or becomes involved in a new relationship, it typically does not affect legal or physical custody of the child. The exception would be if the new partner poses a danger to the child or threatens the child’s stability. A judge will assess how remarriage affects the child’s well-being.

Can the custodial parent move out of state with the child?

Even a parent with legal and physical custody of a child cannot take the child out of state without an order from the court. A parent who wants to relocate must prove to the court, with the help of a custody attorney, that it is in the child’s best interests to do so. The court will consider a number of factors in reaching its decision, including the visitation rights of the other parent.

How is custody established for unmarried parents?

Until and unless paternity is established, the mother has sole custody – full legal and physical custody of the child. An unmarried father who wants parental rights must first establish paternity. This can be accomplished in one of three ways:

  • Both parents complete, sign, have witnessed, and file with the Department of Healthcare and Family Services (DHFS) a Voluntary Acknowledgement of Paternity (VAP) form;
  • DHFS Child Support Services establishes and enters an Administrative Paternity Order; or
  • An Order of Paternity is established and entered in the court. (Illinois courts typically require a DNA test.)

Once paternity is established, the courts are required to treat both parents in a gender-neutral manner.

Unmarried fathers have equal rights to seek parental responsibilities and parenting time.

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