Under Illinois law, a parent of a child can bring a custody case to have the court legally establish paternity, custody, visitation, and child support. The Illinois law that governs such cases is the Dissolution of Marriage Act, and that law applies for the sake of custody matters whether the parents were married or not. There are some differences in how cases proceed depending upon whether the parents were married, and this article discusses the scenario in which the parents are not married.
At that start of the custody case, as Petition and related documents are filed with the court. It is important that this Petition be properly drafted and served upon the opposing party, as fixing errors in it later are expensive at best, and in the worst situations can result in harm that is impossible to fix later. As an example, I have had clients who have tried to prepare their own Petitions, only to make mistakes that resulted in us having to spend more time (and therefore money) to fix the problem later, such that the client would have saved hundreds of dollars had they retained counsel to handle it properly from the beginning. I have also had clients who lost out on thousands of dollars of child support due to not having handled the beginning of the case correctly, after trying to be their own attorney at first. Indeed, during consultations with potential clients I always take a moment to go over those potential pitfalls.
Once the Petition has been filed and served, the next step is addressing Temporary Matters. Temporary Matters include addressing who will have the child under their care during the case, who will pay child support and in what amount, tax exemptions (if we are nearing tax filing time), and other such things that need to be addressed in the short term. Sometimes there is agreement reached, and very little time needs to be spent on Temporary Matters. In other cases, as is often true when the parties are not getting along, there are court hearings where we argue for our requested version of temporary custody, and child support. In contested cases, this can be a very important part of the case as the outcome of Temporary Matters can have a lasting impact upon the rest of the case.
The Discovery process also begins after the Petition is filed and served. Discovery is usually the most important part of a custody case, as it is the portion of the case where evidence is gathered and prepared for use in negotiations and/or a Trial. Properly handling Discovery puts us in the best position possible to either reach the kind of negotiated resolution that the client wants, or to be able to win that resolution at Trial.
Finally, the case will either be settled by agreement or will proceed to a Trial. Whether a case is settled or not depends upon many factors, but essentially comes down to wither or not the parties are willing and able to agree. Sometimes, there is complete agreement reached, and the case settles fully. Other times, there is agreement as to some issues but not others, and the result is a trial on just the limited issues where there was no agreement.
At a Trial, we make use of all the hard work that was done during the case. Trial is not a time to learn new things by asking questions, but rather to present the work that was done over the weeks and months before the trial. Evidence and testimony are presented to a Judge, who will consider a variety of factors before making a ruling. The factors the Judge considers for Custody include:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(9) whether one of the parents is a sex offender; and
(10) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed. In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
For that reason, it is of great importance that actions taken throughout the case by the client are the right actions, so as to avoid harm at Trial. A large part of my work in any custody case deals with that very issue.
Child support in Illinois is set based upon guidelines that take into account the income of the non-custodial parent only. The custodial parent’s income is not relevant for child support purposes in most cases. There are exceptions, such as where the child support outcome would be improper given the circumstances. In those cases, the court can depart from the child support guidelines.
Finally, the Judge will generally take everything under advisement at at the end of the Trial, and issue a written ruling a few days or a few weeks after the end of the trial. Once the written ruling is received, if either party is not happy with the outcome they can seek to have the Judge reconsider some or all of their ruling within 30 days, and/or appeal to the Appellate Court within 30 days.
The entry of a ruling in a custody case does not truly mean the end of the case, however. Either party can seek a modification of the ruling in the future, which is why it is often said that a custody case is not really over until the child has reached the age of 18.