Understanding Illinois Custody Statutes

If you have children and are going through a divorce, separation, or are not married to your children’s mother/father, you know that custody and visitation issues can be difficult.  Understanding your rights and the reasons behind the laws is an important step to making an ultimate decision.

Legal Custody

Under Illinois Law, there are two types of custody: sole custody and joint custody. Sole custody means that one parent makes all decisions for the child, while joint custody means that both parents make joint decisions for the child, including decisions regarding education, medical treatment, religion, and all other major issues. The other aspect of custody is the child’s time with each parent, which the court refers to as “visitation.”


Though both parents may have joint custody, this does not necessarily mean that both parents will have an exact 50/50 split in visitation time with the other parent. The child will have to have one home for many purposes. The amount of time the other parent has will depend on the distance between the parents’ homes, the child’s time commitments, educational requirements, and the child’s preference, among other things. However, under joint custody, a non-custodial parent should have a fair split of time with the child.

Under sole custody, the non-custodial parent should have “reasonable” visitation time. What is considered “reasonable” varies from case to case. When the court looks at the amount of visitation, it looks to the best interest factors, which include the parents’ wishes, the child’s wishes, the relationship between the child and the parents, the mental health of the parents, the presence of any physical or mental abuse, and the parents’ ability to foster a relationship with each other.

Modification of Custody

Once custody has been decided, the court will not allow a modification of custody petition for two years, and then will only consider a modification if there is clear and convincing evidence that a modification is necessary. However, if there is proof that the child’s mental or physical health is in danger, then the court will consider a custody modification prior to two years.

Relative Visitation

The court does not typically give relatives other than parents visitation rights. However, if you are a grandparent or sibling of a minor and the parent you are related to is deceased, the court may consider giving you visitation, especially if the living parent has denied you reasonable visitation.

Denial of Visitation or Child Support

The court does not necessarily see the denial of visitation by the custodial parent as a reason to modify custody. The court is more likely to give an order to the custodial parent telling that parent that they have to obey the current visitation order. However, if the custodial parent continually denies visitation and there is proof that the parent is purposely trying to interfere with the relationship between the non-custodial parent and the child, the court might decide to modify custody.

Additionally, the court considers visitation and child support as two separate issues. Thus, the court will not consider non-payment of child support as a reason to modify visitation or custody.

At the Abear Law Offices, our Illinois family law attorneys understand that making custody and visitation decisions can be a stressful and confusing time in your life. If you are facing a custody battle, please contact us. We can help you understand the law and develop a plan of action that is in the best interest of you and your child.