Wheaton Child Custody and Visitation Attorney

Among the many things that divorcing parents must think about, child custody is always in the forefront of their minds. There are many legal terms that parents will hear during a divorce: physical custody, legal custody, sole custody, joint custody, custody evaluation, and modification. In order to make sure that a custody arrangement is made that serves both you and your kids, it important to speak with a family law attorney who is knowledgeable on the subject.


Family Law Alert: As of January 1, 2016, Illinois family law changed drastically. Click here to read how child custody and visitation were affected.


Basic Custody Terms

Physical and legal custody are two different kinds of custody. The court will determine both for each child.

Physical Custody: Physical custody determines which parent the child lives with and who has the right and responsibility to give daily care to the child.

Legal Custody: Legal custody determines which parent has the right to make decisions about the child's education, health care, and religion.

Common Custody Arrangements

Both physical and legal custody do not have to reside in only one parent, and can be divided in many ways.

Sole Custody: Sole custody means that the child lives with primarily one parent. The parent who has the right to sole custody is called the custodial parent. The other parent is called the non-custodial parent.

Joint Custody: Joint custody means that the parents share physical control and/or decision making. Joint legal custody is pretty common where parents have joint physical custody, but the reverse is not true, as joint legal custody may often be granted without joint physical custody. When joint legal custody exists, it is important that the parents are able to work together for the best interests of the children. In Illinois there is no presumption for or against joint custody but unless there is abuse, the court shall presume that involvement of both parents in the child's upbringing is in the best interest of the child.

Split Custody: Split custody is when each parent takes custody of different children. This is not as common as joint custody.

"Bird's Nest Custody" or "Bird Nesting": Bird's Nest Custody is when the children stay in the family home while the parents move in and out separately.

Custody Determinations During a Divorce

Immediately after a couple decides to separate, questions concerning custody begin to surface. While often decisions regarding custody are agreed upon soon after the separation, many times custody issues are decided in court. The court may address custody in many different ways, such as:

Temporary Hearing: A judge will hold a hearing shortly after the divorce papers are filed. Among the legal issues to be decided in this hearing is custody. Temporary custody is usually granted to the parent who lives in the marital home, though if there is abuse or other evidence to suggest that this would not be in the best interest of the child, this will not be the case. While temporary custody orders may be an indication of which parent the court believes is more suited to raising the child, temporary custody orders are not determinative of which parent will get permanent custody at the conclusion of the divorce.

Mandatory Mediation: Mediation is an alternative method of resolving disputes in which the parents work with a third party in order to resolve the issue. Illinois courts are able to order parties who cannot agree on custody to attend mediation. It is possible to resolve custody in mediation while leaving other issues to the court process. If a couple determines custody through mediation they can put a provision in the final divorce decree that requires the couple to continue to resolve custody and visitation disputes through mediation before returning to court.

Custody Evaluation: When the parents cannot agree on who should get custody prior to trial, Illinois courts will order a custody evaluation. The custody evaluation is usually done by a social worker, a psychologist, or another mental health professional that is appointed by the court. The mental health professional will talk with teachers; interview and perform psychological tests on both parents; and observe, interview, and perform psychological tests on the children. The custody evaluations usually take four to twelve weeks. The court will not enter a final custody order unless the custody evaluation is complete.

Trial: Illinois, like most states, determines custody based on the best interests of the child. Illinois courts look at eight factors to determine this: the parents' wishes, the child's wishes, the child's relationship with parents and others, the child's adjustment to their home and community, mental and physical health of family members, physical violence, ongoing abuse, and the willingness of each parent to foster a relationship with the other parent.


Parents can seek modification of the custody arrangement even after custody has been determined through agreement or court order. Modification can only occur if the parent can show a substantial change in circumstances. If it has only been two years since the original custody decree, Illinois will only allow modification if there are indications that the child's current environment will endanger his or her physical, emotional, mental, or moral health. Under the Uniform Child Custody Jurisdiction Act, which Illinois has adopted, modification is only allowed if it is requested in the state of the child's residence. This rule is to prevent parents from kidnapping children and taking them across state lines in order to get a more favorable custody agreement.


Divorce is enormously stressful, and a custody dispute only adds to the stress, but it is in the best interests of your children to act rational and calm throughout the process. At Stock, Carlson & Duff LLC we understand that the needs of your children are of primary importance to you and we can help to make sure that you get a custody arrangement that ensures your children's happiness and stability. Call us at 630-665-2500 or e-mail us here to schedule a consultation.

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