Divorcing parents need an understanding of basic Custody concepts. Original Custody Determinations are explained here. Modifications to Prior Custody Determinations are explained elsewhere. Original Custody Determinations are very important, as Modifications require at a minimum a showing of “substantial change” in circumstances.
Divorcing parents first face custody issues when separating. Because a divorce can take many months to finalize, there are custody issues that cannot wait until a divorce is final.
In Illinois, Temporary Custody refers to the custody arrangement preceding the Permanent Custody order. Temporary Custody issues must be dealt with promptly after the divorce is filed. If Temporary Custody is contested, Court intervention is required.
Typically, a Temporary Hearing is held before the Court shortly after the divorce papers are filed. Unless it is not in the “best interests of the children,” temporary custody will typically be granted to the parent remaining in the marital home. While temporary custody orders do not decide permanent custody, a Judge’s initial impressions are still important.
The process to determine Permanent Custody is designed to force parents to negotiate. The steps each get substantially more expensive, and typically include, (i) Attorney Settlement Negotiations, (ii) Mediation, (iii) Children’s Attorney Involvement, (iv) Custody Evaluation, and (v) Trial.
Attorney Settlement Negotiations simply involve the parents’ attorneys communicating to reach a custody arrangement. If the parents can’t or won’t agree, Supreme Court Rule 905 requires divorcing parents (with limited exceptions) to attend mandatory mediation. In Mediation, divorcing parents meet with a neutral third party trained to foster negotiations. Mediation is not binding, meaning the parents are not forced to reach an agreement. Following Mediation, the Mediator will file a report with the Court informing the Court that the parents participated in the Mediation, whether the mediation was successful, and recommending whether a Guardian ad litem (“GAL” or Children’s Attorney) should be appointed.
GAL’s act as the Children’s attorney, and participate in the divorce on behalf of the children. GAL’s conduct investigations of the children’s living arrangements, wants and desires regarding custody, and how the “best interests of the children” will be met.
GAL’s then report their findings to the Court. If the parents still cannot reach an agreement, the Court will typically order a Custody Evaluation before Trial. Custody Evaluations are conducted by court-appointed clinical psychologists, social workers or other mental health care providers. These evaluations involve interviews of the children, parents, and teachers, and can additionally involve in home and school observations. Such evaluations are very expensive and can take a few months to complete.
The final step of the Custody Process is the Custody Trial. Custody Trials are expensive. Section 602 of the Illinois Divorce Act directs the Court to the “Best Interest Test” to determine Child Custody, and provides the Court, in addition to any other relevant factors, specific “Best Interest Factors” to consider in determining Custody.
We work hard on behalf of our clients and their children. We explain to clients the laws concerning the Child Custody process, and we represent them and their interests at each step of the Child Custody process as we seek to obtain a fair custody arrangement.
We can handle all of the Child Custody aspects of your divorce. If you would like to read more now, click on any of the following links: