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Child Custody and Visitation

When you are going through a divorce nothing is more important than your children.  Who will they live with?  How much will I see them?  When will I see them?  Will they be o.k. after all of this?  These are questions that most parents think of first when faced with ending a marriage.  It is important to find the right lawyer to help you answer all of these questions, a lawyer who will look out for not only your interests, but the interests of your children.

Visitation:  Before the divorce is even finalized, you most likely will have to design a visitation plan for your children.  Every parent is guaranteed reasonable visitation with their children, unless the court finds, after a hearing, that visitation with a parent would seriously endanger the child’s physical, mental, moral or emotional health.  750 ILCS 5/607.  What is reasonable visitation is different for every family and often depends on a family’s way of life: what has been the family structure leading up to the divorce, where do both parents live in relation to one another, what are the work schedules of the parents, what are the ages of the children and what activities are the children involved in, are all questions that should be asked and considered in order to make a visitation schedule that is not only good for the parent, but good for the child as well.  A visitation plan should be individualized for the family and the child and should not just be a cookie cutter version of “what is normally done.”  Visitation is defined in the Illinois statutes as “in-person time spent between a child and the child’s parent.”  750 ILCS 5/607(a)(1).  It is up to the parent to ensure that visitation is quality time spent with a child.  This quality time can include sharing an experience together, doing homework together, cooking dinner together and may even include disciplining the child if necessary.  Quality time with a parent includes talking over problems with a teenager, guiding a child in the right direction and helping a child find his or her way in life.  An appropriate and fair amount of visitation for a parent is meant to give the parent and child time to continue the bond that they have formed during the marriage while the parents lived together.  If a parent has to move away from a child, or a parent is on a business trip, visitation can take place by electronic means, such as Skype, texting or email.

A divorce may be an adjustment and a major life change but setting visitation that is in the best interests of the child will ensure the relationship between parent and child will still continue to grow and be strong.  Divorce does not mean losing time with your child, it means rearranging the time you spend with your child, making that time count and continuing the bond and relationship that you have already formed.

Child Custody:  Child custody is always a concern for any parent in a divorce.  Each parent must set aside the issues that they have with their spouse and focus on what is in the best interest of the child.  Just because a person may be a bad husband or wife does not mean that that person is a bad parent. Studies have found that maximum involvement of both parents in a child’s life is often the best for the child.  There are two types of custody in Illinois, sole and joint.  Both types of custody preserve parental powers, rights and responsibilities.  Joint custody of a child means that you will be sharing major decision making responsibilities with the other parent.  Such major decisions include issues regarding education, health care and religious training.  750 ILCS 602.1(b).  Other decisions may be agreed upon by the parties to be made jointly, such as decisions regarding extra-curricular activities.  In order to have joint custody, parents must be able to communicate and cooperate with each other regarding the children.  750 ILCS 602.1(c)(1).  Parents should be flexible when working with each other to come to a decision about the children and should remember to put the children’s best interest first before all other concerns.  If parents are not able to communicate or cooperate enough to come to decisions regarding the children, then the court will have to grant sole custody to one parent.  Sole custody grants all major decision making rights to one parent.  Cases involving an order of protection having been issued against one parent to protect the other parent will result in sole custody being granted to the protected parent.  The Illinois courts are required to take into consideration statutory factors when determining the custody of a child.  The factors that a court must consider when granting custody of a child to a parent 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…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.  750 ILCS 5/602(a).  The court is to presume that maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child.  This means, that unless the court is given good reason, whether sole or joint custody, the court will look in maximum involvement in the child’s life for both parents.

A divorce is stressful for everyone involved, including the children.  A parent’s assurance to the child that they will continue to have as much involvement as possible will help the children transition into this new way of living.  A parent must follow through with participation in the child’s life and activities in order to continue a relationship with the children.  The courts can be used to ensure that maximum involvement with your child after divorce is granted to you and you and your child remain in a close, loving relationship.

Children and Family Services (DCFS)

Becoming involved with the Illinois Department of Children and Family Services can be a scary situation.  DCFS has a lot of power; caseworkers or investigators can take your children away from you, can order you to complete certain services and judge you on your ability to parent.  When you receive a summons to appear in juvenile court on an abuse or neglect case, you will first be told what the allegations are against you.  You are then given a chance to admit or deny the allegations or ask for a trial if you want one.  If one parent admits to the allegations, the child is then found to be abuse or neglected, whichever the case may be, and this prohibits the other parent from having a trial as to the issues presented.  The reason for this is because the issue in juvenile court is, “what is the status of the child,” not who did it, not who is responsible, but has the child been abused or neglected by someone.  When one of the parents admits to the abuse or neglect, the child is now considered to be abused or neglected and therefore the opinion or position of the other parent becomes irrelevant.

After a child has been found to be either abused or neglected, the court will order the parties to complete certain tasks and services suggested by the Illinois Department of Children and Family Services (DCFS).  These tasks and services must be completed in order for the court to consider your child being returned to your custody.  You must also show DCFS and the court that you have appropriate parenting skills.  Often DCFS will send the parents to a parenting class or have the parents participate in parenting coaching.  Both of these tasks will provide the parents with parenting skills training.  When the parents are involved in this training, the caseworker will be looking to see if the parents apply the knowledge and training they receive in the class or during the coaching to the real life visitation the parents have with the child.  It is very important to show the caseworker that a parent is taking the training he or she has received and applying it in their interactions with the child.

Return home of the child may be a slow process.  Usually a parent will start with supervised visitation with the child where a caseworker will monitor the visitation.  Then the parents will work into unsupervised visitation, then overnight visitation and then extended overnight visitation before the child is finally returned home to the parent.  Just because the child is returned home does not mean that the case is closed.  The court may keep the case open for a period of time to check on the parents and make sure they remain stable with the child in the home.  The agency (DCFS) can also keep its case open for a period of up to six months even after the court closes its case in order to monitor the family and provide additional services, like continued counseling, before closing the case.

Having DCFS come into your home and take your children can be scary and leave you feeling hopeless.  However, with the right counsel and some patience, you can regain custody of your children and become a family again.