Divorce can be complicated, but nothing can make the process as confusing and
hard to deal with as child custody. Both parents want to spend as much
time with their child as possible; however, more often than not, the court
will award one parent physical custody of a child while the other shares
legal custody. If you’re about to go through a divorce as a parent,
here are some of the most frequently asked questions people have concerning
Question 1: What Do Physical Custody and Legal Custody Mean?
Custody comes in many shapes and sizes. The court will usually decide where
the child lives and who makes the decisions for him or her based on what
they consider the child’s best interests. The court will award physical
custody and legal custody to both or one parent. Physical custody refers
to where the child will be living. Usually, one parent will have physical
custody of the child, meaning the kid will live with that parent primarily.
However, if both parents split physical custody, their kid’s time
will be split living with both. Legal custody, on the other hand, refers
to who makes the important decisions that will affect the child. For example,
parents who share legal custody will have to decide together where to
send their kid to school, whether or not the child will be educated in
a religious faith, and where the child will receive the majority of their
Question 2: Do Unmarried Mothers Need to File for Custody?
Depending on the state you live in, you may be required to file for custody
as an unmarried mother. In Illinois, parentage depends on the
legal relationship between a parent and a child. A birth mother’s parentage
is typically established by her giving birth to the child. A birth father’s
parentage needs to be legally established. If you are the legal mother
of the child and the child’s father doesn’t have legal parentage,
you do not need to file for custody; however, that father does not need
to pay child support either. If both parents of the child have legal parentage,
you will both need to file for custody.
Question 3: How Do Courts Determine Who Gets Custody?
Courts across the United States have an obligation to decide child custody
based on what the best interest of the child is. In Illinois, for example,
a judge will be looking at several factors when making his or her decision.
These factors include the following:
- Wishes of the parents
- Wishes of the child
- Interaction of the child with the parent(s), sibling(s), and anyone else
who may affect the child’s best interests
- Child’s adjustment to his or her home, community, and school
- Mental and physical health of all involved
- Any physical or threat of physical violence by a potential custodian
- Ongoing or repeated domestic violence
- Each parent’s willingness to encourage a continuing relationship
between the other parent and the child
- Sex offender statuses
- Terms of military family care plan that must be completed before a parent/
guardian is deployed
Question 4: What Does the “Best Interests of the Child” Mean?
While each court defines a child’s best interests differently, they
all refer to what is the most ideal or “best” situation for
the child. Generally, it is healthier for a child to maintain a relationship
with both parents whenever possible. Likewise, if moving away from their
current school would be emotionally problematic, for example, the court
may decide to have the child remain with the parent in that particular
Question 5: Should I Hire a Lawyer?
In a few cases, when both parents can decide on a child custody arrangement
without argument, a lawyer isn’t necessary. However, if both parents
can’t agree on a parenting plan, that is when a lawyer is vital.
With the fate of your relationship with your kid on the line, you want
to ensure you have the best representation possible, particularly if your
ex-spouse is giving you a hard time. Family law attorneys know the child
custody laws of the state inside and out, so you will have someone on
your side who is fully knowledgeable about your rights as a parent.
Question 6: What Happens If My Ex and I Are Able to Agree on Child Custody?
If you and your spouse are lucky enough to be able to agree on child custody,
you will have a much easier time getting through the child custody process.
Your parenting plan should still be outlined, signed, and filed by an
experienced attorney, as the court still needs to look it over before
Question 7: What Is Mediation?
Mediation is sometimes required in a divorce in some states. It involves
meeting with an impartial third party (the mediator) who can try to help
you and your spouse reach a reasonable compromise regarding child custody.
Mediation is often used in place of a lengthy legal battle because it
saves everyone both time and money. If you can resolve your disputes through
mediation, it is highly recommended you do so.
Question 7: Can Child Custody Orders Be Changed?
If a court has settled on the best child custody circumstances, these orders
can still be changed. However, in order to ask for a modification of your
child custody orders, a court will need you to demonstrate you have undergone
a significant change of circumstances. In order to change the order, you
must have a legitimate cause for reconfiguring the existing order, such
as relocation, safety, or potentially a better job.
Question 8: Can a Child Choose Which Parent to Live With?
According to Illinois law, children 14 and other can choose which parent
to live with; however, a judge has the ability to overrule this decision
if he or she believes the child’s decision is not in his or her
Question 9: Are Judges Biased Against Fathers?
The courts are supposed to be impartial, which means they are not permitted
to discriminated against fathers. There are circumstances, however, when
the mother is given primary custody because she served as the primary
caregiver up until the divorce. If you are a father and are worried about
your position as a caregiver, make sure to hire an experienced family
law attorney to represent you in court. You need to present yourself as
the better parent without putting your ex-spouse down.
Question 10: Will Allegations of Domestic Violence Hurt My Chances of Getting Custody?
Courts will be looking at all factors when making a decision regarding
child custody. Judges dislike awarding custody to parents who have committed
domestic violence on the child or other members of the family. If you
have been accused of domestic violence, the court will carefully investigate
those allegations before making a determination. A false accusation could
lead to serious consequences; you will need a legal representative to
help represent you.
If you have further questions, give our experienced Illinois family law
attorneys a call. We have been helping the families of Illinois for years
with their legal issues. We understand this may be a difficult time for
you, so our lawyers will do their best to make your representation as
stress-free as possible. At
Wakenight & Associates, P.C., we are dedicated to solving problems and helping our clients overcome
their obstacles. Let us see what we can do for you in a free phone consultation.
Call us or
fill out our online form to schedule your consultation today.