Helping Your Own Custody Case

With more fathers seeking custody of their children than ever before, it is important to realize what things courts consider in determining children’s best interests. Courts often look at who performs basic but important services for the kids. If you are not doing all or most of these things, you should start immediately:

• Serving meals to children
• Putting children to bed
• Reading children stories
• Dressing the children
• Disciplining the children (appropriately and in a consistent manner)
• Taking care of children in the middle of the night
• Assisting with toilet training
• Giving children baths
• Buying children’s clothes
• Taking children shopping
• Taking children to doctor
• Taking children to play with other children
• Taking children to lessons and classes
• Cleaning clothes for children
• Playing and drawing with children
• Watching television with children
• Changing children’s diapers
• Taking off work to take care of sick children
• Taking children to church
• Planning and participating in children’s birthday parties

Child custody in Illinois and in other states is a fairly common-sense concept. It is based on the child’s best interest. The statute requires the judges to take the following factors into account:

1. The wishes of the child’s parent or parents as to his custody.
2. The wishes of the child as to his custodian. (The court may consider the preferences of the child in awarding custody but is not bound by that preference. Such preferences, though, are entitled to consideration, especially when supported by valid reasons).
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 interests.
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 the 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 abuse.
8. The willingness and ability to facilitate and encourage a close and continuing relationship between the other parent and the child.

These are only the required factors. The court can take into account any relevant factor in its discretion. The court’s discretion is vast. Other factors could involve:

• Integration into family unit
• Religious or racial considerations
• Work patterns of parents and time availability to child
• Mobility of homes
• Interference with other spouse’s parental relationship with child, including false charges of physical, mental or sexual abuse
• Cohabitation with member of the opposite sex
• Age and sex of child and parents
• Misconduct of parent, including substance abuse
• Wealth of parents
• Refusal of parent to work or pay child support
• A parent’s physical limitation

However, the court is prohibited from considering conduct of a party that does not affect his relationship to the child. Also, keep a diary concerning daily goings on with the children and/or your spouse. It may come in handy someday. Once the case gets going, you may be interviewed by a mediator, court appointed mental health professional or attorney for the children. The following short list illustrates the kinds of things you may be asked:

• You may be asked what you desire as a specific custody result and why. Try to articulate this. The custody of a child is not awarded to gratify the feelings of either parent or as a form of reward or punishment to a parent, but is merely in accordance with the child’s best interest.
• Your future plans for the children, including, school, medical care, friends, etc. are reasonable areas of inquiry.
• You will be asked about your knowledge as to many aspects of the children’s life such as current friends, what they like to do, favorite books and toys, that sort of thing. You will be asked at some point what are all the problems with your spouse (or former spouse) as a parent. You must set them out if you want anyone to rely on them. The trick is to set them out in a factual manner with a minimum of ad hominem, hyperbole or over dramatization. You also should have a good idea as to what visitation you would want your spouse to have. Have a plan and demonstrate confidence with it.
• Talk about the children’s good qualities. Talk about their faults in a constructive way that indicates that you are trying to work on them with your kids. Try to convey a positive mental attitude.

Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.