How to File for Temporary Custody in Illinois

By Carrie Ferland

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Under Illinois law, an Order for Temporary Custody grants one parent primary physical custody of a couple’s minor children during the couple’s divorce proceedings. The main goals of a temporary order are to eliminate any potential confusion for both the parents and the children, to ensure the children are safe and well cared for during the divorce proceedings, and to establish an outline for the Order for Primary Child Custody that a judge will enter during the finalization of the divorce.

Obtain a blank Petition for Temporary Primary Custody. You can request one from the clerk of the family court in your county of residence, purchase one from a local legal document supply store or download a generic petition from an online resource. Be sure to also obtain a copy of the petition’s instructions for guidance on how to complete the form.

Complete the blank petition by entering you and your former spouse’s personal information, including your full names, addresses and Social Security numbers. Then, provide the full name, date of birth and Social Security number for each minor child for whom you wish to apply for temporary custody. Also provide your income, your former spouse’s income and your expenses relating to the care of your minor children. If you do not know your former spouse’s income, give your best estimate. Sign the bottom of the petition when you are finished. Make a copy of the signed petition and retain this for your personal records.

File the original signed petition, along with copies of any supporting documents requested in the instructions, with the clerk of the family court where your divorce matter was filed. There will be a nominal filing fee--between $35 and $180, depending on your county--that you must pay before the clerk will file your petition. Once filed, you will receive a copy of the petition. The clerk will then schedule a hearing date. You will receive notice of the hearing date either at the time you file or within a few weeks via mail.

Make proper notice of filing to your former spouse. To do this, draft a short letter to your former spouse explaining that you have filed a Petition for Temporary Custody with the county family court. Sign the bottom of the letter, then make a copy to retain for your personal records. Attach a copy of the filed petition to the back of the letter and mail this to your former spouse via Certified Mail with signature delivery.

Prepare for the temporary custody hearing. At the very least, you should prepare copies of your filed petition, the letter to your former spouse (and the corresponding Certified Mail receipt), and any other documents relevant to the proceedings. Also organize any evidentiary documents you have that support your claim for temporary custody. Make at least two copies of every document you intend to bring so that you can furnish the judge and your former spouse with their own copies if necessary.

Attend the custody hearing. Be prepared to argue not only why you are the superior choice for taking custody, but also why you believe your former spouse should not have custody. Stick to the matter at hand, and do not introduce evidence irrelevant to the custody issue, including information about your pending divorce. Answer any questions the judge asks fully and honestly, and allow your former spouse to speak without interruption.

Cooperate with any investigation the judge might order prior to awarding temporary custody. The judge has the authority to order an investigation into one or both parents’ lifestyles and histories to assist in her final decision. You can be subject to a home visit with your county child welfare services to observe your living situation. The investigating agency also might interview you, your former spouse and your child, and prepare a report for the judge to review prior to awarding temporary custody. If you fail to cooperate fully with the investigation, you can lose temporary custody.

Wait for the judge’s final decision. In most temporary custody cases, the judge will schedule another meeting to announce his decision, which allows him to consider the matter after the hearing ends. When the judge does make his decision, he will enter an Order for Temporary Custody that awards either you or your former spouse temporary primary custody. The parent who does not receive temporary custody is entitled to visitation, so the judge likely will enter a temporary visitation schedule to which you must adhere. These orders become effective immediately and will last until a permanent Order for Child Custody is entered during the finalization of the divorce.

About the Author

Carrie Ferland is a practicing civil litigation defense attorney in the Philadelphia Area. As an author, her work has been featured in various legal publications for over 10 years. Ferland is a 2000 graduate of Pennsylvania State University and completed her Juris Doctorate and Master of Business Administration with the Dickinson School of Law. She is currently pursuing a Doctor of Philosophy in English.

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