One of the most emotional and important issues in divorce cases is determining custody of the divorcing parents’ minor children. Custody, in the legal sense, means the right to make decisions regarding the welfare of children. In other words, the right to make decisions about the child’s education, health, religion, and general welfare. When both parties share decision-making authority, it is called “joint custody.” When only one party has this decision-making authority, it is called “sole custody.” It is important to remember that in Illinois the term “custody” does not, by itself, determine the amount of time a child can spend with each parent. However, it is customary for a child to generally live primarily with a parent with sole custody.

It is almost always in the best interest of minor children if their parents can come to a joint decision regarding custody arrangements. When parents cannot agree on the custody of their children, the court is called upon to assign custody of the children to one or both parents. In this case, it is essential to hire a skilled divorce attorney with experience in custody disputes.

In determining custody in Illinois, the Court is officially guided by the law. Illinois statute 750 ILCS 5/602 states that “the court shall determine custody in accordance with the best interest of the child.” The statute then lists ten factors that the court must consider when determining custody. These factors are:

(1) the wishes of the child’s parent(s) regarding custody;

(2) the wishes of the child regarding his guardian;

(3) the child’s interaction and interrelationship with his or her parent(s), siblings, and any other person that may significantly affect the child’s best interests;

(4) the child’s adjustment to his or her home, school, and community;

(5) the mental and physical health of all individuals involved;

(6) physical violence or the threat of physical violence by the potential custodian of the child, whether directed against the child or directed against another person;

(7) the occurrence of continued or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether against the child or another person;

(8) the willingness and ability of each parent to facilitate and foster a close and continuing relationship between the other parent and the child;

(9) if one of the parents is a sex offender; Y

(10) the terms of a parent’s military family care plan that a parent must complete prior to deployment if a parent is a member of the Armed Forces of the United States being deployed.

The court may also consider any other factors that it considers relevant in determining the best interests of the child. One of the reasons why it is extremely important to hire a divorce attorney who is experienced in child custody cases is because these attorneys can accurately assess which factors will be most important to the court. In my experience, the most important factor for the Court in most cases is determining which parent is the primary caregiver. In the absence of unusual circumstances, the court generally awards custody to the parent who is considered the primary caregiver.

There is no legal definition for “primary caregiver,” but it is generally the person who is primarily responsible for the care of the children on a day-to-day basis. It is the primary caretaker factor which is also why I believe many custody disputes are won or lost before either party speaks with a divorce attorney or files a Petition for Dissolution of Marriage. For example, sometimes one spouse moves out of the marital residence as part of an initial separation weeks or months before either spouse speaks with a divorce attorney or files for divorce. In this situation, the children would necessarily live and spend more time with one parent, who would almost certainly be determined by the Court to be the primary caregiver.

Resolving child custody disputes in court may be the most important process in your life and that of your children. Therefore, it is extremely important to retain a divorce attorney with the experience, knowledge, and expertise to obtain the best possible result.