Given that the facts of every case is different, it is important to consult with an attorney regarding any individual situation. However, this summary does provide some important legal information on this topic.
Pursuant to 750 ILCS 60/103, in Illinois, abuse is defined as physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. It does not include reasonable direction of a minor child by a parent or person in loco parentis. If the court finds that petitioner has been abused by a family or household member or that petitioner is a high-risk adult who has been abused, neglected, or exploited, as defined in this Act, an order of protection prohibiting the abuse, neglect, or exploitation shall issue. 750 ILCS 60/214(a).
In Illinois, courts are supposed restrict or deny a person’s visitation with their children if the find that a parent has done, or is likely to do, any of the following: (i) abuse or endanger the minor child during visitation; (ii) use the visitation as an opportunity to abuse or harass petitioner or petitioner’s family or household members; (iii) improperly conceal or detain the minor child; or (iv) otherwise act in a manner that is not in the best interests of the minor child. 750 ILCS 60/214(b).
A party to a custody proceeding may move for a temporary custody order and the court may award temporary custody under the standards of Section 602 after a hearing. 750 ILCS 5/603. Pursuant to 750 ILCS 5/602, family courts are to determine custody in accordance with the best interest of the child. By statute, family courts are to consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(9) whether one of the parents is a sex offender; and
(10) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed. In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.
Importantly, family courts are not supposed to consider conduct of a present or proposed custodian that does not affect his relationship to the child. 750 ILCS 5/602(b). Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, state law presumes that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody. 750 ILCS 5/602(c).
The law above outlines the issues at stake in Illinois when abuse is alleged and temporary custody of children is at stake in divorce or custody proceedings. Obviously, this is a fact specific inquiry that gives judges lots of discretion to determine what is in the best interests of the children.
Any party in the midst of temporary custody proceedings of any kind will want legal counsel to assist them through the process. At Stange Law Firm, PC, we have attorneys available to assist if you wish to contact us.