For fathers seeking custody of a child, it is important to understand the different kinds of custody: physical custody is known as “parenting time” and legal custody, is “parental responsibility” in Illinois. Parenting time refers to the time a child spends with a parent whereas parental responsibility grants the legal authority to make important decisions for a child such as where they attend school, healthcare they receive, or what religion they practice.
Establish Paternity Before Seeking Custody
When a child is born to a married couple, the law assumes both spouses are parents of the child and a father may immediately pursue parenting time and parental responsibility. However, sometimes a child is born out of wedlock leaving the paternity of the child in question. Before attempting to get custody of a child, the biological father must establish parentage of a child which can be done by petitioning the court and undergoing the necessary tests to establish paternity.
Work Together on a Parenting Plan for Approval by the Court
Once paternity is established, the best approach to obtain custody is to work with the other parent to divide custody. With the help of an experienced family law attorney, parents can prepare a parenting plan which will become the legal custody agreement after submission and approval by the court. A parenting plan will include a comprehensive parenting time schedule including vacations and school breaks; describe how communication will be handled between all parties; how transportation will be handled, first right of refusal when a parent is not available during their designated parenting time; dispute resolution terms; who will be responsible for making certain decisions, one or both parents; other pertinent issues. Working with an experienced attorney to prepare a parenting plan is advisable to avoid omissions that may result in conflicts requiring modification of the order.
When parents cannot agree to a parenting plan, a judge may direct parents to mediation to resolve their differences. If mediation fails, the matter may be decided by the court after testimony and evidence is heard, often along with the recommendation of a child representative (guardian ad litem) assigned to the case to discern what is in the child’s best interests. Determining best interests involve weighing various factors such as the relationship between the child and his or her parents, siblings, family and household members; the parent’s ability to provide basic necessities of food, clothing, shelter; the mental and physical health of the parents and the child; and other relevant factors.
A court favors an arrangement where a parenting time and parental responsibility is shared between parents for the benefit of the child. However, in cases where one parent is unfit due to mental or physical incapacitation, drug or alcohol abuse, domestic abuse, or where the recommendation of the child representative points to one parent having primary placement or parental responsibility, the custody determination may favor one parent.
Jurisdiction in a Child Custody Case
Filing for custody of a child is done by filing the required court documentation in the child’s home state, where jurisdiction over the child and the authority to make custody decisions reside. The child’s home state is the place where the child has lived with a parent or guardian for at least six months prior to filing for custody, or, if the child is not yet six months old, the place where the child has lived from birth. If no location fits the criteria, a parent may file in an area where the child has significant connections.
Notifying the Other Parent
After filing, the other parent must be notified (served) the court paperwork informing them that a child custody case has been initiated, which will include information regarding upcoming hearings. At the hearing a parents may present the mutually agreed upon parenting plan, or one may argue for both legal custody (parental responsibility) and joint, partial or sole physical custody (parenting time). The case will proceed as directed by the court.
Modifying a Child Custody Order
A father who is no longer estranged from his child may modify a custody order to spend more time with their child, but he must wait two years after the original order to petition for a modification unless there are a change in circumstances that endanger the child’s well being or a significant change in circumstances has occurred since the original order such as a change in the child’s relationship with the custodial or non-custodial parent, a custodial parents relocation for a job, a child’s needs changing, or other significant changes in circumstance that warrant a more immediate modification.
Contact an Experienced Father’s Rights Child Custody Lawyer
If you have questions regarding paternity, Illinois child custody, or modifying a child custody order, contact Illinois child custody attorney Ronald L Bell & Associates for help today at 447-495-6000.