One of the most contentious issues in divorce is child custody. Even common terms such as “custody battle” and “custody award” highlight the adversarial nature of many custody determinations. In deciding custody questions, Illinois courts are guided by the legal principle “the best interest of the child.” And research has made one fact clear: ongoing custody disputes between parents are not in the best interest of the child.
There are two types of custody: physical and legal. The court usually awards primary physical custody to one parent while the other parent has visitation rights. However, both parents have legal custody. In most cases, the mother receives physical custody and the father has visitation rights.
Factors the court considers in determining custody include level of care provided by each parent, age of child, an older child’s preference, child’s adjustment to school, home and community, mental and physical health of parties, any history of domestic violence, whether a parent is a sex offender and whether a parent is active military. The court may also consider witness testimony. Each parent’s willingness to get along with the other parent is also noted by the court.
It is important for parents to communicate and cooperate on childcare issues. Older children quickly learn how to “play” one parent against the other to gain privileges, presents and power.
One traditional problem in child custody disputes occurs when one parent tries to undermine the other parent’s relationship with the child. This can result in Parental Alienation Syndrome, a condition which can have devastating psychological effects on a child. There can be serious legal consequences for the offending parent if the court determines that parental alienation is being attempted. In some cases of Parental Alienation Syndrome, courts have even removed children from the custody of the offending parent.
Visitation is usually determined in accordance with a parenting plan. Visitation is designed to encourage and preserve the parental relationship. The right to visitation is not contingent on the duty to pay child support, and denying visitation in retaliation for late or missing support payments can have serious legal consequences up to and including a change in physical custody.
Child support is determined according to a set formula and can be accomplished through wage assignment. If the person paying child support suffers a dramatic drop in income, it is possible to have the child support payment modified.
Child custody can be a difficult issue to resolve. An experienced attorney can help with difficult negotiations and fair agreements. Like the court, parents need to consider “the best interest of the child” and sometimes put personal emotional reactions on hold for the sake of the child.