Getting a Divorce With Children

Updated on 06/15/2022 / Under

Getting divorced can be stressful for everyone involved, more so for the couple's children. Children have very little knowledge of what is going on depending on their age. When most marriages are ending, children do not have enough closure on the situation, they feel confused and hurt.

The effects of getting a divorce with children are especially tough when they are used to seeing their parents together. There are cases where the children would not mind the parents separating. If one of the parties was abusive or in the case where one of the parents was never present. They may not have such a hard time being separated from them.

When they were used to both parents, separation, and the divorce process can be such a difficult time if not carefully handled. They may feel as if they have to either choose a side or feel that it is their responsibility to make sure they create time for both parents, especially if they are not on good terms.

Because of how fragile getting a divorce with minor children is, you want to make sure that you are well prepared and that you talk to your kids so they understand that their family life is going to change. Get legal advice and information about divorce laws and custody laws based on where you live.

Establishing Child Custody In Illinois

For an Illinois family court to establish a child custody case in they need to have jurisdiction. Here is when the family court in Illinois has jurisdiction:

  • If the child has lived in Illinois since birth or for the last 6 months
  • If the child lives out of state, they have lived in Illinois in the past 6 months, and one of the parents still lives in the state of Illinois.
  • The home state where the child comes from has politely turned down exercising jurisdiction in respect to Illinois. One of the parents plus the child has a significant connection to the state, or evidence about the child's care, relationship, and so on will be found in Illinois.

In the state of Illinois, the court will grant legal custody, physical custody, or both. When a parent has legal custody, they can make decisions about how the child will be raised. They can decide where the child will go to school, any religious training that they should attend. The parent basically has the right to make significant decisions concerning the child's life.

divorce with children

Physical custody, on the other hand, is about where the child will live. A family judge can grant both parents legal and physical custody of the child. In other instances, based on the child's best interest, the judge will give one of the parents legal and physical custody.

Illinois as a state does not automatically conclude that joint custody would be in the child's best interest. The judge will consider all relevant factors to make a decision. If there was domestic violence, the parent who is the victim of domestic violence will be favored and will be granted sole legal and physical custody in most cases.

Determination of the Child's Best Interest

Even if the couple has decided about the child's custody, the judge will still determine the child's best interest. Here are some of the relevant factors that a judge will put into consideration while making the decision:

  • They will consider what each parent wishes
  • What the child wishes for will be put into consideration
  • The relationship that the child has with the parents individually, siblings, or another individual who has a significant impact on the child's life
  • The mental and physical health of both parents and the child
  • How the child will adjust to their environment (that is, home, school, or the community)
  • Has there been any physical violence or a threat of physical violence towards the spouse or the child, or any other person
  • Continuous instances of domestic violence towards a child or toward any other individual
  • If the parent has been charged with a sexual offense
  • If one of the parents is a member of the US armed forces and the military spouse is being deployed

In most cases, the judge will prefer that the children stay together after a separation. However, there are instances where the children may be separated.

Each custody case is different, and the judge will decide the case based on these and other unique factors. According to the Illinois custody law, the parent's fitness will not be questioned, or the parent will not be denied custody due to adultery or any other parent's marital conduct. The only time it will become a factor is if the parent's relationship with the child is affected.

What are the Grounds for Divorce in Illinois

In the past, the grounds for divorce in Illinois were limited to adultery, impotence, or cruelty. However, in 2016, the laws were changed, the concept of divorce changed and Illinois became a “no-fault” divorce state. The spouse does not necessarily have to be at fault for a divorce case to be filed. These were the grounds for divorce before:

  • Infidelity
  • Bigamy
  • If one of the spouses had abandoned the other spouse for at least one year
  • Substance abuse or alcohol abuse for two years
  • Continuous or extreme abuse. Both physical and mental abuse
  • Attempted murder on the other party
  • Infecting the other party with an STI disease
  • Being convicted of a felony/ criminal charge
  • Impotence

Even though Illinois is a no-fault divorce and the above no longer needs to be presented as grounds for divorce, it is different in child custody cases. The judge will consider some of the above factors while deciding who should have custody of the children after a divorce.

What Happens if Your Spouse Refuses to Participate in Divorce Proceedings?

An uncontested divorce is less complicated. Both parties are in agreement that the divorce needs to be dissolved. They cooperate with one another when it comes to issues concerning division of property, child custody, and alimony, and child support if it applies. However, there are instances where one of the parties does not cooperate, and it makes it hard on the other spouse who has filed for a divorce.

It is important to note that both parties don't need to sign the divorce forms in order to finalize the divorce. You will need to file a divorce petition, and you will have to prove that the other party has received a notice that you have filed the petition. You should as well show that you had given them ample time to respond to the divorce petition. In Illinois, after 30 days of filing the petition and there is no response from your partner. Neither do they file a motion in the court. You can ask the court to find the other party in default.

If you are getting a divorce and have children this process is much more difficult.

When this happens, a default hearing is set, and if your spouse still does not show up in court on the specified hearing date, they will grant you a default divorce. The judgment that will be made will be out of the other party's control since they did not show up.

The procedure will be different if your spouse cannot be located. You need to speak to a divorce attorney to advise you about the options you have.

How Does Joint Custody Work?

If the parents can work together and can adequately handle major parenting issues, the court can grant them joint custody. When they enter into a joint parenting agreement, they can define where what each parent's responsibility toward the child, parenting time, and other things.

If one of the parents is unsuitable, the other parent is given sole custody. Depending on why the non-custodial parent is unfit, they will get visitation rights.

Even if the parents have joint custody, child support will still need to be paid depending on the parents' finances, the time the parent spends with the child, and the needs of the child, among other factors.

What Can be Used Against You in a Child Custody Case?

One of the issues that can significantly impact child custody decision is a history of domestic violence. The state legislature of Illinois believes that domestic violence and a history of abuse are unhealthy for the child's emotional state, mental health, and childhood development.

In Illinois, domestic violence is defined as threatening, injuring, harassing, or interfering with an individual's freedom by kidnapping or unlawfully restraining them. If the acts are committed towards a family or household member, it is defined as domestic violence in Illinois.

Who are family and household members, according to the state of Illinois?

  • Members of the family who are related by blood
  • Individuals who are dating or used to date in the past
  • Married individuals or individuals who used to be married
  • Individuals who have a child together
  • People who used to live together or are living together

Suppose it is proven that there is domestic violence. In that case, the noncustodial parent who has been accused of the offense can face custody issues. They may be denied the right to see their children, or they will only have restricted access to them.

You will need the service of an experienced divorce lawyer to help explain what else will impact your child custody hearing. Call Ktenas Law and explain the details of your case to us. We listen, and we can help get you a good divorce settlement agreement and do what is best for your child.