Family law judges in the Prairie State must make all child custody decisions in the best interests of the children. That includes both custody and visitation matters. Typically, both parents agree with that overall sentiment even if they are in the midst of a bitter divorce. Yet almost all parents disagree as to the specifics.
To resolve these differences, judges may look at a number of factors to determine best interest. 750 ILCS 5 gives a non-exhaustive list of items. Here are some of the more prominent ones. They are in no particular order and no one factor has any more weight than another.
Child’s Preference
If the child is old enough and presents his or her preference in an intelligible manner, such preferences are often powerful. Unlike some other states, Illinois law does not list a “magic number” age when such testimony is allowed or disallowed. So, the issue comes up a lot.
Typically, Illinois judges hold in camera (in chambers) interviews. The judge, the lawyers, and the child all gather in the judge’s office. Many judges take off their robes and don sweatshirts to make the child feel more at ease. After asking a series of questions, the judge makes a decision.
In some cases, a parent can testify about a child’s stated preference, under the state-of-mind exception to the hearsay rule. The out-of-court declarant, in this case the child, must have made the statement in a situation that reinforces its credibility. Moreover, although it is rare, some judges allow or require children to testify in open court. There, they may be ruthlessly cross-examined and threatened with perjury if they do not tell the truth.
Parental Motivations
At the risk of sounding harsh, some Chicago parents view their children as little more than trophies. Both moms and dads have this opinion. If one party wants child custody primarily to deny this privilege to the other parent, the petition almost always fails.
Sometimes, there is a “smoking gun.” One parent admits, either in court or out of court, that his or her primary motivation is spite for the other parent. Circumstantial evidence is available, as well. If Mom or Dad displayed little interest in parenting during the marriage but suddenly wants full custody upon divorce, red flags go up. Finally, in contested cases, most Illinois judges order social studies. These professionals are quite good at reading people.
The Status Quo
There is an old saying that “possession is nine-tenths of the law.” That is why the divorce temporary hearing is critically important. Once the children move in with Mom or Dad, the judge almost never moves them, even if the situation is far from perfect. The challenging parent can rebut this presumption, especially if the social study is either favorable or noncommittal. However, it is an uphill climb.
Co-Parenting Ability
This one is somewhat counterintuitive. Many parents work with highly aggressive “pit bull” lawyers who bitterly contest every decision, no matter how trivial. This over-aggressive strategy usually works against them. Many Chicago judges rightly conclude that if such parents are so contentious now, they will be even worse once active court supervision ends. Essentially, they will be bad co-parents. Judges expect parents to stand up for their rights, but they also expect parents to work together when necessary. A good family law attorney knows how to walk that line.
Connect With Experienced Lawyers
Child custody is an extremely delicate matter. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Aaron Burden)