Avoid Splitting the Child in a Custody Dispute

Avoid Splitting the Child in a Custody Dispute

By M. Scott Gordon

When a marriage ends, there are a lot of things to be considered as the couple splits and each person goes their own way. In addition to splitting property and deciding other legal issues, if there are minor children involved, there have to be decisions made as to what will happen to them after the divorce.

It is always better if the parents can get together and decide how they will share parenting time with their children. If the divorce is not acrimonious, the parents can often come up with an agreement that best suits the child, one that also works with the parents’ new lives and schedules. In fact, under the Illinois Marriage and Dissolution of Marriage Act, before making a final determination, Chicago area parents are required to first seek a mediated settlement regarding a custody dispute.

 

The agreement can be quite detailed in listing out the rights and responsibilities of the parents in the child’s personal care, including specifying who is to make decisions on health, education and in some cases religious training. The agreement should also contain a provision identifying how potential future disputes concerning the care of the child will be resolved, for example through mediation.  A Parenting Agreement becomes a legal document when it is adopted by the court and made a Custody Judgment; it is therefore important to have an attorney help you negotiate its terms and review it before anyone signs.

Without the parents’ cooperation, the court has to make a decision on custody and visitation, and the parents may not always like the outcome. The court may even award sole custody to one parent. In arriving at a custody decision, the court has determine what is in the best interests of the child, as determined by certain child custody factors set by law.

Unmarried Fathers and Custody

If an unmarried couple has a child together, a parent has to take steps to establish paternity if he or she wishes to seek custody. If the man is listed on the birth certificate as the child’s father, then there is a presumption of paternity. If not, the man has to sign a Voluntary Acknowledgement of Paternity (VAP), stating that he is the child’s father. Alternatively, the man can seek a DNA test to conclusively establish paternity. The law does not automatically grant custody to the mother. Once he has established paternity, the father may then seek custody of the child, as would a married man in the midst of a divorce.

Visitation

The parent who does not get residential custody of the child, that is, the parent who does not live with the child, is granted visitation rights. The court may deny visitation where, after a hearing, it is determined that the child’s physical, emotional, mental or moral health will suffer due to granting visitation. In some cases, even if visitation is granted, it may be ordered to be supervised by another adult.

Chicago grandparents and siblings are also allowed to petition the court for visitation rights, in certain situations. The courts will not ordinarily interfere with a fit parent’s decisions on prohibiting grandparents’ visitation. The person questioning the visitation has the burden of proof in court. Therefore, grandparents seeking visitation have to satisfy various criteria and show that the child needs to have a relationship with them, and that barring that relationship is not in the child’s best interest.

Contact an Attorney

If you are going through a divorce and need assistance negotiating for the custody of your child, or you are seeking representation in court, contact  M. Scott Gordon & Associates at our Skokie office 847-329-0101 or our Chicago office 312-360-0250, and see how we can help you in this important aspect of your divorce.