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In a Chicago divorce, the overwhelming emotions and uncertainty surrounding child custody can take a severe toll on you and your family. At Swietkowski & Swietkowski, P.C., we understand the profound impact this process has on your life and the future of your children. Our experienced, resourceful and compassionate Chicago child custody attorneys are committed to obtaining the best possible outcome for you and your child.

With our extensive experience in handling child custody cases in Chicago, we are well-equipped to guide you through this complex legal terrain, ensuring that your children’s best interests remain at the forefront. Trust us to stand by your side at every step, providing the support, guidance, and robust legal representation you deserve during your divorce and child custody process.

How is Child Custody Determined in Chicago?

Effective January 1, 2016, Illinois replaced the term “custody” with two separate legal elements:

Allocation of Major Decision-Making Responsibilities includes significant decisions regarding education, religion, healthcare, and extracurricular activities. These responsibilities can be equally shared between parents or assigned to one parent. In accordance with Illinois laws, joint decision-making is encouraged unless the parents are incapable of making decisions together.

Parenting Time, formerly known as “visitation,” refers to the time a child spends with each parent. Chicago family courts as well as our dedicated child custody case attorneys usually encourage parents to reach their own agreement regarding Decision-Making and Parenting Time. However, we at Swietkowski & Swietkowski, P.C. understand that in many situations that is simply not possible.  

Parents are often better suited to make decisions for their children than a judge. When an agreement is reached, an Allocation Judgment is prepared and must be approved by the court. This document governs parenting decisions, including decision-making, parenting time, holiday allocation, dispute resolution, and other specifics. However, it does not address child support or the allocation of child-related expenses.

If parents are unable to reach an agreement, the court may need to intervene. In such cases, the court often sends the parties to mediation to reach an agreement or appoints a child advocate. There are three types of child advocates with distinct responsibilities and rules:

Guardian ad litem (GAL)

A GAL is an attorney or a trained professional appointed by the court to investigate the facts of the case and make recommendations to the judge concerning the child’s best interests. They may interview the child, parents, teachers, and other relevant individuals, as well as review pertinent records and documents. The GAL will then submit a report to the court with their findings and recommendations. Their recommendations are not binding, but they carry significant weight with the judge.

Child Representative

A Child Representative is an attorney who represents the child(ren)’s best interests in legal proceedings. Unlike the GAL, the Child Representative does not submit a report to the court. Instead, they advocate for the child’s best interests in negotiations and court proceedings, much like an attorney would represent their client. The Child Representative has the authority to conduct investigations similar to a GAL but takes a more active role in the legal process.

Attorney for the Child

Another option is a family law attorney in Chicago who represents the child directly in legal proceedings. This type of advocate is appointed when the child is deemed mature enough to express their preferences and make informed decisions. The attorney represents the child’s expressed wishes, even if those wishes may not align with the child’s best interests.

Each type of child advocate discussed above plays a different role in the legal process, and the court selects the most appropriate type based on the specific circumstances of the case. Our experienced family law attorneys will help you understand each type before an advocate is appointed. In addition to appointing a child advocate, the court may order a custody evaluation performed by a psychiatrist and/or psychologist. Our lawyers will guide you through the different types of custody evaluations to ensure no detail is overlooked.

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Factors Determining Parenting Time and Parenting Responsibilities in Chicago

When determining the allocation of decision-making responsibilities (formerly legal custody) in Illinois, the court will consider the child’s best interests by evaluating several factors, including:

  1. The child’s wishes, taking into account their maturity and ability to express their preferences
  2. The child’s adjustment to their home, school, and community
  3. The mental and physical health of all individuals involved
  4. The ability of the parents to cooperate and make decisions jointly
  5. The level of conflict between the parents that may affect their ability to share decision-making
  6. The degree of each parent’s past involvement in decision-making related to the child
  7. Any prior agreements or conduct between the parents regarding decision-making
  8. The wishes of the parents
  9. The child’s needs
  10. The distance between the parents’ residences, the cost and difficulty of transporting the child, and each parent’s daily schedule
  11. The willingness and ability of each parent to foster a close and continuing relationship between the other parent and the child
  12. The occurrence of physical violence or threats of physical violence by either parent, directed against the child or other members of the household
  13. The occurrence of abuse against the child or other members of the household
  14. Whether one of the parents is a convicted sex offender or resides with a convicted sex offender and whether that offender poses a threat to the child
  15. Any other factor the court finds relevant

However, when it comes to determining the allocation of parenting time (formerly physical custody), the courts will consider the following factors:

  1. The wishes of each parent regarding parenting time
  2. The child’s wishes, taking into account their maturity and ability to express their preferences
  3. The amount of time each parent spent taking care of the child in the 24 months prior to the filing of any petition for allocation of parenting time, or since the child’s birth if they are two years old or younger
  4. Any prior agreements or course of conduct between the parents relating to caretaking functions and parenting time with the child
  5. The interaction and relationship between the child and their parents, siblings, and any other person who may considerably impact the said child’s best interests
  6. The child’s adaptation to their home, school, and community
  7. The mental and physical health of all individuals involved
  8. The child’s needs
  9. The distance between the parents’ homes, each parent’s daily schedule, the difficulty and cost of transporting the child, and the ability of the parents to cooperate in the travel arrangement of the child
  10. Whether a restriction on parenting time is appropriate
  11. The occurrence of physical violence or the threat of physical violence by the parent directed against the child or another member of the child’s household
  12. Each parent’s willingness and ability to place the needs of the child ahead of their own needs
  13. The willingness and ability of each parent to foster and encourage a close and continuing relationship between the other parent and the child
  14. The occurrence of abuse against the child or other members of the child’s household
  15. Whether a parent is a convicted sex offender, the nature of their offense, and any treatment the offender has participated in
  16. The parent’s military family-care plan, which is required to be completed before deployment if a parent is a member of the U.S. military being actively deployed
  17. Any other factor the court finds relevant to the child’s best interests

(Both lists of best interest factors may look the same at first glance, but there are subtle differences between them)

Note: Since July 2017, Illinois has had a new child support statute that brought significant changes to the calculation of child support payments. This updated model considers not only each parent’s income but also the amount of parenting time each parent has, specifically focusing on the number of overnights. 

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Types of Child Custody in Chicago

Before the 2016 changes in Illinois law, child custody was often categorized as either “sole custody” or “joint custody”:

  • Sole Custody: One parent had primary decision-making authority and responsibility for the child. The other parent typically had visitation rights, now referred to as parenting time.
  • Joint Custody: Both parents shared decision-making authority and responsibility for the child. This arrangement required a high level of cooperation between the parents, as they had to work together to make decisions in the child’s best interests.

However, since then – technically speaking – the concept of “child custody” simply doesn’t exist in Illinois anymore. The state removed the term “custody” from the Illinois Marriage and Dissolution of Marriage Act in 2016, replacing it with the concepts of parenting time and decision-making responsibility. These changes have shifted the focus away from the traditional idea of custody and towards a more cooperative approach to parenting.

Parenting time: This is the schedule of when each parent spends time with their children. This is either agreed upon by the parents and approved by a family court judge, or if the parents cannot agree, the judge will assign a schedule based on the “best interests” of the child.

Parenting or decision-making responsibilities: This refers to the responsibilities that each parent will have on behalf of the child. Parents may agree to share decision-making or divide the individual categories of decision-making responsibilities. These categories must include:

  • Health
  • Education
  • Religion
  • Extracurricular Activities

That said, even though the term “custody” is no longer used in Illinois law, it remains an important concept in society. So, in the light of these changes, allow us to explain the types of child custody in the state:

Joint Custody (Joint Allocation of Responsibilities)

In Illinois, joint custody is essentially an arrangement in which both parents share parental responsibilities and parenting time equally. Joint custody or “shared parenting time” works best when parents can communicate effectively and prioritize the best interests of their children.

However, if one parent refuses to cooperate or believes that joint parenting time is not feasible, they can present their concerns to the Illinois family law court. The court will then consider all the relevant factors, including the ability of the parents to collaborate and the willingness of each parent to put the child’s needs first. If the parents cannot cooperate, the court may decide that a joint custody is not in the best interest of the child and decide that a different custody arrangement is more suitable. Cooperation between parents is crucial for the success of joint custody. By working together, both parents can maintain a strong relationship with their children.

Sole Custody (Sole Allocation of Parental Responsibilities)

Sole custody in Illinois refers to an arrangement where one parent has primary parenting time and decision-making authority for the child. While sole custody is possible, it is not the default arrangement, and Illinois courts tend to encourage joint custody or shared parenting time.

However, if there is evidence of abuse, violence, or threats to the child’s safety, the court may consider sole custody to protect the child. In such cases, the parent seeking sole custody must provide substantial proof of the allegations.

In practice, parents often have sole responsibility for making routine decisions during their parenting time, as long as the decisions do not involve the major decision-making categories of education, health, religion, or extracurricular activities. This means that when a child is with one parent, that parent has the authority to make day-to-day decisions for the child.

Ultimately, the best custody arrangement is one that prioritizes the child’s well-being and encourages a healthy relationship with both parents. Parents should strive to work together and create a parenting plan that meets the unique needs of their family situation.

Child Custody Laws for Unmarried Parents in Chicago

Unmarried parents in Illinois must establish a legal parent-child relationship for the court to issue binding orders regarding parenting time and responsibilities. Two primary methods available for this are biological paternity and legal adoption.

Biological paternity

A father’s name on the child’s birth certificate creates a presumption of paternity, but to establish a legal parent-child relationship, a paternity action is necessary. This can be done through:

  • Agreement: If the mother and father agree to the paternity action, it can simplify the process, as it acknowledges the father’s legal rights and responsibilities.
  • Paternity test: If the mother or father doesn’t agree or has doubts about paternity, the court may order a DNA test to establish paternity conclusively. Once paternity is confirmed, the father gains legal rights, such as parenting time schedules and the possibility of full custody.

Establishing a legal parent-child relationship in Illinois is essential for unmarried parents to safeguard their rights and responsibilities. Navigating the complex web of paternity laws can be challenging, but with the trusted guidance of a family law attorney at Swietkowski & Swietkowski, P.C., you can confidently work towards the best outcome for your family. Our experienced team understands the emotional nuances of these situations and is committed to standing by your side, providing unwavering support throughout the process.

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Don’t Fight Your Child Custody Battle Alone in Chicago – Our Trusted Lawyers are Here to Help

We know that your child’s well-being is your top priority. That’s why our skilled and empathetic divorce case attorneys at Swietkowski & Swietkowski, P.C., are dedicated to guiding you through the complicated custody matters in Illinois with personalized attention.

If you want to file for sole custody, we will help you present a compelling case to demonstrate why granting you sole custody is in the best interest of your child. We’ll gather evidence, negotiate with the opposing party, and advocate for your rights in court, ensuring that your voice is heard.

If you want to modify your existing parenting time and/or parenting responsibilities order due to a substantial change in circumstances, we will meticulously assess the situation, gather relevant documentation, and build a strong case to support your request for modification. We are here to safeguard your interests every step of the way.

Our commitment to excellence and our ability to craft innovative solutions tailored to your unique situation set us apart from the rest. By choosing Swietkowski & Swietkowski, P.C., you’re not just hiring legal representation; you’re gaining a trusted ally who will walk this challenging path alongside you. To schedule your free consultation, fill out this form or call our team at (773) 207-8983.