Child Custody in Illinois: What You Must Know as a Mom

Child Custody in Illinois: What You Must Know as a Mom

Every state has its own laws in dealing with divorce and child custody. As a mother, it’s important to understand your state’s child custody laws thoroughly. Understanding the state laws will help to ensure you know how the divorce process will impact your children and how best to be prepared. This article will outline the basics of what every mom should know about child custody in the state of Illinois.

Please note that the Illinois legislature recently renamed the term “child custody.” Prior to the change, Illinois used the terms physical and legal custody to discuss the two aspects of child custody (as defined below). The new legislation now uses the term “allocation of parental responsibilities” in lieu of “legal custody” and uses the term “parenting time” in lieu of physical custody. Therefore, the correct legal terms to describe child custody in Illinois are the “allocation of parental responsibilities and the parenting time.” However, to avoid confusion, as many people are unfamiliar with this legislative change, this article will continue to use the term “child custody” instead of the more formal legal terms.

What is Child Custody in Illinois?

Child custody is not merely where the child lives. It also accounts for a parent’s decision-making power over the child. Child Custody in Illinois has two parts: legal and physical custody. A court can award joint legal and physical custody to both parents or sole legal or physical custody to one parent. Legal custody refers to the essential decisions about how to raise your child. This includes religion, schooling, extracurricular activities, and major medical decisions. Physical custody is where the child actually lives. Therefore, it is possible for there to be joint decision-making powers while one parent has primary physical custody. 

In Illinois, unless there is convincing evidence to the contrary, the judge will likely find joint legal custody for the parents.

When a judge decides on legal custody in Illinois, it is very difficult to change that order. To change a ruling on legal custody, the person who wants to change it must show that there has been some significant, life-altering change that should alter the parenting responsibility. This can be a difficult burden to meet.

Consider reading, “How Can a Custody Order be Changed?”

In Illinois, courts are very reluctant to grant sole custody to one parent. Courts are only likely to grant sole custody in extreme circumstances where the judge finds that one person is unfit to parent. A finding of parental unfitness requires concrete evidence to prove that a parent cannot be responsible for their child. This can occur in cases involving abuse, domestic violence, or incapacity. Generally, it is in the child’s best interest to spend time and have a relationship with both parents. This applies to both legal and physical custody.

How Do Courts Determine Child Custody in Illinois?

Historically, courts have been biased toward mothers in child custody arrangements. Until the 1980s, most states, including Illinois, followed the tender years doctrine. The tender years doctrine held that it was in the child’s best interest to be raised by their mother in a divorce. Therefore, child custody arrangements strongly favored sole custody to moms, with dads having visiting time.

However, with the changing tide of women’s rights and societal norms, courts now firmly reject favoring women solely based on mothering stereotypes.

Present-day, Illinois courts encourage parents to work out a joint physical custody arrangement. Courts prefer parents to work out a near 50-50 schedule. However, in many cases, parents can’t reach a perfect, equal custody arrangement. If that is the case, Illinois judges will not blindly push for joint physical custody. Instead, courts will determine the physical custody arrangement based on the child’s best interest. 

To understand more about how things are done in Illinois, check out “6 Essential Things to Know About an Illinois Divorce” and “What to Know About Divorce Laws in Illinois.”

Best Interest Standard

Child custody in Illinois follows the best interest standard. If parents can’t come to a custody agreement, the court will base its decision on the child’s best interest. Legislators have laid out the framework judges should follow in determining a child’s best interest in the Illinois divorce statute. There are seventeen factors that the court will consider, giving different weight to each factor depending on each family’s unique situation. The court will examine the factors to determine how a custody decision will impact the child. Some of the factors the court considers are:

  1. The parent’s wishes
  2. The child’s wishes
  3. The caretaking responsibilities of each parent
  4. The child’s relationship with their parents
  5. The child’s adjustment to home, school, and surrounding community
  6. The mental and physical health of the parents
  7. The child’s needs
  8. Logistical considerations for the child’s life
  9. The ability for parents to put their children’s interests and needs ahead of their own
  10. Support systems of the child and the parents
  11. The safety of the child

Courts will determine the best interest based on your family’s specific needs and circumstances. Some of the best interest factors might not apply to your family, so the judge won’t need to consider them, while some might play a significant role and will be regarded as heavily. Every custody arrangement focuses on your child, not the parents. In more contentious cases, the court can appoint a Child Representative. A Child Representative is usually a lawyer who represents your child’s interests in court. They do interviews and collect facts to help the judge determine custody.

Children’s Wishes

Because Illinois law sets out a list of factors for a judge to consider in custody arrangements, judges choose what kind of weight they should give to a child’s custody preference. There is no exact age when the court should consider a child’s preferences; that is up to the judge’s discretion. The judge will consider the child’s age, maturity, reliability, and any other relevant factors when determining the appropriate weight for their preference. For example, if it’s clear that a child wants to live with the “fun” parent because they are lenient and have no rules, the judge is far less likely to consider the child’s input.

If you are dealing with custody issues, you will want to read, “Best Advice on Custody for Divorcing Moms.”

What if I Don’t Get Physical Custody?

Even if the court determines that your Ex should have primary physical custody, do not despair. Except in limited circumstances, it is usually best for children to have ample time with both parents. Therefore, Illinois courts will likely advocate for substantial parenting time (visitation). There are many ways to schedule parenting time, and the concrete schedule might look different for all families. Through mediation or litigation, you will determine a visitation schedule that will work for your family and allow your parent-child relationship to continue to grow.


Going through divorce as a mother who is worried about child custody can be intimidating. You always want what’s best for your children. The first step in helping your children through this process is fully understanding your state’s child custody system.


Elizabeth Newland is a third-year law student in Chicago committed to children and family rights. She aims to work in a family-related non-profit firm after graduation.


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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

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