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 child custody.
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 health care.
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 school district.
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 approving it.
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 best interests.
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.
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