Steven A. Miner II, Lawyer, on Child Custody Cases

Whether you are going through a divorce or a single parent looking to gain full custody, it is important to know what happens during child custody proceedings. The following are the three most common cases in child custody cases.

Divorce and Custody Decisions

Whether you are considering divorce or already moving forward with divorce proceedings, child custody (parental decision making authority in Illinois) and visitation (parenting time in Illinois) issues will need to be resolved before the divorce can be finalized. Custody and visitation are usually resolved in one of two ways during a divorce. First, parents will agree on custody and visitation as a result of informal settlement negotiations or out of court dispute resolution proceedings like mediation. However, if the first version does not end in an agreement, the court can decide on the child’s custody and visitation schedule based on a determination of what is in the best interests of the child. Such a determination does not result quickly (and is often expensive if experts are involved); however, each case is unique and the necessity of experts, child representatives, or guardians ad litem will vary based on the circumstances of each case. It is important to remember that simply because you hear a story of what your friend or someone else experienced in their custody dispute, such does not necessarily mean that you will experience the same.

Unmarried Parents and Custody Decisions

In some custody cases, a child’s parents are unmarried and one of the parents will file what is referred to as a Parentage Action in Illinois. The determination of the allocation of parental responsibility and parenting time schedule in a parentage case is virtually identical to that of a divorce proceeding. The key factor in a parentage case is that such a case is effectively a divorce without the divorce because the key dispute in question is the allocation of parenting time with each parent, decision making authority for the children, and the allocation of costs for the children, i.e. child care, child support, school expenses, extracurricular activities, medical expenses, post high school educational expenses, and the like.
Similarly, if the unmarried parties cannot reach an agreement, then a similar process as noted above with the potential use of experts, child representatives, or guardians ad litem will be involved in assisting the court in making a determination as to what is in the best interest(s) of the minor child(ren).

Non-Parental Custody Decisions

Non-parental custody happens when someone other than the child’s parents want to obtain custody — these individuals include: grandparents, aunts, uncles and distant relatives. Most states have specific procedures when someone is seeking non-parental custody. The initial process begins when a “non-parental custody petition,” or a document with a similar name is filed with the courts. The document outlines the person’s relationship to the child, the status of the birth parents, and the reason custody is being sought by the movant. When the petition is filed, a copy is also delivered to the child’s birth parents if they are living and have a known address. The balance of the proceedings for a non-parental custody decision is handled in family court and again may require the same process as outlined above for custody disputes in a divorce or parentage action.