When a marriage or relationship involving children breaks down, arrangements for custody of the children must be made.
Interview with James M. Quigley
James M. Quigley is a partner in the law firm of Beermann Swerdlove LLP in Chicago, Illinois. Mr. Quigley has been practicing law since 1992. He specializes in the area of family law, and has dealt with matters of child custody and support, paternity, visitation, and pre-and post-nuptial agreements.
Recently, Mr. Quigley took time out of his busy schedule to answer LoveToKnow's questions about child custody.
What types of child custody arrangements are available?
There are two basic options for custody: Sole Custody and Joint Custody. Sole Custody allows the parent who is awarded custody to unilaterally make all of the major decisions affecting the welfare of the child, including, but not limited to educational, religious, and medical decision as well as the selection and enrollment of the child in various activities. Joint Custody requires that all major decisions affecting the child be jointly made; neither parent may legally make a major decision unilaterally as one may be permitted to do if he or she had Sole Custody.
In Illinois, parents who have Joint Custody and who cannot agree upon a major decision affecting the child must first attempt to resolve the disputed issue through mediation prior to either parent bringing the disputed issue before the Court for resolution. It is important not to confuse custody with visitation or the parenting schedule as they are separate and distinct legal issues. In other words, one parent does not necessarily get more or less time with the child simply because he or she has Joint versus Sole Custody.
Notwithstanding the basic statutory custody options, parents on occasion have fashioned their own custodial arrangements defined as "shared parenting" or other arrangements whereby custody is not formally assigned to either parent, but rather an agreement is prepared simply defining each parent's rights and responsibilities regarding the child. It should be noted that while some judges may allow the entry of such unconventional agreements on the basis that they find such an agreement is in the child's best interest because the parents are working cooperatively, such agreements are likely unenforceable if challenged later because of the lack of statutory authority for such agreements.
How are these arrangements decided?
Most often custody arrangements are negotiated out of court. Frequently the Court will order parents to attend mediation regarding custody before proceeding with contested litigation in hopes that a professional mediator will be able to assist the parents in reaching an amicable resolution out of court.
In the event two parents cannot agree upon the custodial arrangement of their child, then the Court will conduct a contested trial to determine which parent should be awarded custody based upon what the Court determines to be in the child's best interest. Usually the Court will appoint an expert (psychologist, psychiatrist or social worker) to evaluate the parents, the child and other collateral sources, to make a recommendation to the Court as to what custodial arrangement the evaluator believes to be in the child's best interest.
Because a fundamental premise of Joint Custody is the ability of the parents to agree and communicate regarding the best interests of the child, the fact that the two parents cannot even agree upon whether their should be Sole or Joint Custody makes it highly unlikely that a Court will award Joint Custody following a contested custody trial. Leaving the decision of custody to be made by the Court should be viewed as an absolute last resort. Custody trials are often times emotionally traumatic for the child as well as the parents, and are always extremely expensive having to pay lawyers, experts, court reporters, investigators, etc.
If a custody matter is to be decided by the Court, what factors are taken into consideration?
From state to state the factors may differ, but in Illinois the factors the Court takes into consideration in determining the best interests of the child are determined statutorily by Section 602 of the Illinois Marriage and Dissolution of Marriage Act, which states as follows:
(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(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 abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986,whether directed against the child or directed against another person; and
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
As stated above, these factors are usually taken into consideration by an expert evaluator appointed by the Court and considered as part of the child's overall psychological best interests and then conveyed to the Court as a formal recommendation for the Court to take into consideration along with all of the other evidence presented at trial.
Are custody arrangements different if the parents are not legally married?
Not in the state of Illinois. However, if a child is born out of wedlock, the mother is presumed to be the custodial parent. Once the father is established legally to be the biological and/or natural father of the child, he may seek custody of the child. In other words, the factors considered by the Court in a custody dispute as part of a dissolution proceeding are the same factors the Court will consider in a custody dispute between two parents who have never been married.
Are the child's wishes taken into consideration when determining custody matters?
Under subparagraph (2) of Section 602, the Court shall consider the expressed wishes of a child as to his custodian. It is important, though, to understand that it is within the Court's discretion as to what weight they place on the child's expressed wish. Furthermore, the expressed wish of the child is only one of many factors the Court will consider and may be disregarded if other factors, contrary to the child's expressed wishes, outweigh the child's expressed wish. Therefore, a parent should not assume he or she will get custody simply because the child expresses a wish for his mother or father as his custodian.
Additionally, the Court will consider the age and maturity of the child in determining what weight to place upon the child's expressed wish. Typically, once a child reaches the age of (14) the Court will begin to place greater weight on the child's expressed wish. However, the Court may still consider the expressed wishes of a younger child if that child is mature, articulate and is able to provide some reasoning behind his expressed wish.