Feb 11, 2013 | Child Custody


Battling over custody of your child can be one of the most stressful and complicated times in your life. Fortunately, an experienced child custody arrangements can be an invaluable resource to you as you fight for your rights to custody. There are two types of child custody in the legal world-legal custody and physical custody. Legal custody consists of a parent’s legal right and responsibility to make decisions regarding the child (e.g. medical, educational, and religious decisions). Physical custody includes the right and responsibility of a parent to house, feed, clothe and care for on a day-to-day basis. With a countless number of options for child custody arrangements, parents fighting for physical custody should be aware of the many different factors considered by the courts in awarding child custody. The following list describes a few of these:

The wishes of the child. Within reason, a judge will consider the wishes and desires of the child in determining which parent will be awarded custody. An attorney called a guardian ad litem will often be assigned to the child in order to ensure the child’s voice is heard in court. Additionally, the child’s age will play a role in the amount of consideration a judge will give to the child’s wishes. Typically, the older the child is, the more weight his/her wishes will hold in the matter.

The wishes of the parent. While this is considered by the judge to be a factor, things can get complicated when both parents desire custody, and are often on different pages regarding the issue. Because of this, parents are often encouraged or required to go through mediation. In the event that only one is willing to have custodial rights, the courts will consider the lack of desire on the part of the uninterested parent. Such a lack of desire for custody often signifies a lack of fitness of the parent to be the custodial parent.

The ability of the parent. Although one parent may greatly desire custodial rights, he must first be able to prove his ability to be a fit parent. In addition to being financially stable enough to house and care for a child, other factors used to determine a parent’s ability to have custody include providing a safe living environment; providing adequate means of transportation; willingness to facilitate communication between the child and the other parent during non-visitation times; and willingness to facilitate communication between the child and other family members.

Physical and mental health of the parent. While a parent may be completely financially able to house his child, and may meet several other requirements necessary to prove himself a fit parent, the courts will consider the physical and mental health of the parent petitioning for custody. Many physical disabilities can hinder a parent from providing adequate care and attention for his child. Likewise, many mental disabilities can negatively affect one’s judgment, preventing him from providing a safe environment for the child.

Living arrangement as it relates to friendships, family relationships, education, etc. As the courts assess the situation from all angles, and after the safety of the child is considered, they will consider whether or not the physical location is such that it allows for the child to make a smooth transition into life under the roof of only one parent. Research supports the benefits of stability in early childhood. Maintaining such stability often requires that the child remain in the same house or city that would allow him to continue attending the same school and/or church, as well as maintain the same relationships with friends and family that he has developed over time.

Above all else, the most important factor that the courts will consider as you fight for physical custody of your child is the best interest of the child. The above factors, in combination with several others provided by Illinois state law, will play a large role in the determination process.

For more information on your options in petitioning for custody of your child, feel free to contact the Law Office of Bradley R. Tengler at 815-981-4859 for a free consultation. Please note, the above does not constitute legal advice. Please discuss your specific rights with an attorney in your own jurisdiction.