Determining the custodial parent in a divorce used to be formulaic. Many courts preferred mothers as the custodians of young children because of the presumption that young children need their mothers. This idea was known as the tender years’ doctrine. Not so in Illinois. The state has abrogated the idea of automatically awarding custody since the 1970s. Both parents going through divorce proceedings have equal custody rights.
Judges determining custody do not necessarily look at the relationship between parent and child. It is not based on who is better or worse for the children. Instead they emphasize on which parent would be in their best interest of the child. A mother does not have to be declared to be unfit before a father is awarded custody. Parents have equal rights to the custody of their children; however, the fitness of the parent is one factor in the custodial determination. Judges will also examine any incidents of physical violence or threat of physical violence by the child's potential custodial parent. The action could be against the child or anyone else in the home.
Keeping the Status Quo
Judges in Illinois also tend to consider the child's lives home life. How well the children adjust to their home, school and community environment is important. This includes the physical and mental health of the parent and the children as well. The courts are less likely to change living arrangements in cases where the children appear to be well adjusted to their surroundings. This is because the courts believe it is important to maintain stability and continuity in the child’s environment.
Illinois judges look for key factors, including but not limited to the wishes of the parents as to custody, the wishes of the children and the interaction and interrelationship the children have had with their parents. The expressed wishes of mature children carry considerable weight if they are based on sound reasoning. This includes the desire to stay with friends, to continue attending the same school and remaining in the same environment. It is also important to know how willing the custodial parent will be in continuing the child's relationship with the other parent. After divorce proceedings are over, the noncustodial parent has a right to visitation, and denying that right may be considered contempt of court.
Because of the nature of custody contests and because each personality is different, the evidence in custody disputes are numerous, varied and interrelated. Each factor must be weighed accordingly, and no one factor settles the matter completely. If you are a father who is in the middle of a custody battle, it is important to arm yourself with an attorney who is familiar with all aspects of Illinois custody law. The attorney should also know the personal tendencies of the judge handling your case. Together, you can discuss the facts and the way to best posture your case for success.
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