Recent Changes to Illinois Custody Law

Illinois Parenting Laws 2020 | Recent Changes to Illinois Child Custody Law

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we explain Illinois child custody law for 2020 and the most recent changes made to custody law in Illinois.  We address the topics:

  • How is child custody determined in Illinois in 2020?;
  • What changes have been made to Illinois child custody law in 2020?;
  • How Do Courts Determine Which Parent is the Primary Caretaker in Illinois in 2020?;
  • What is the Primary Caretaker Presumption in Child Custody Cases in Illinois 2020?;
  • How is the “Best Interests of the Child” Defined in Illinois in 2020?;
  • What is a Parenting Plan for Allocation of Parenting Time and Responsibility in Illinois?;
  • What if the Parents Can’t Agree on Allocation of Parenting Time and Responsibility?;
  • How Are Decision-Making Privileges and Parenting Time Determined in Illinois in 2020?;
  • What is a Temporary Allocation Order in Illinois?;
  • Can Allocation Agreements be Modified in Illinois?; and
  • How Does an Unwed Father Get Visitation Rights in Illinois in 2020?

How is Child Custody Determined in Illinois in 2020?

The phrase “allocation of parenting time and responsibility” has replaced the terms “custody” and “visitation” since the modification to Illinois child custody law in 2016.  The purpose of the change was to represent parenting time and responsibility as a spectrum, rather than a one-dimensional term.  Now, parenting time and decision-making privileges have nothing to do with which person is the “custodial” or “non-custodial” parent.  Even in “shared parenting” situations, the term “custodial parent” is used to designate where the child lives the majority of the time and attends school.

What Changes Have Been Made to Illinois Child Custody Law in 2020?


The newest changes made to Illinois child custody law were made in 2016.  Highlights of those changes include:

  • “Custody” and “visitation” have been replaced with “allocation of parenting time and responsibilities” to describe when each parent is responsible for the child and what those responsibilities entail during that time.
  • The terms “joint decision-making” and “sole decision-making” have been added to describe whether one or both parents must make decisions about education, religion, medical care and extra-curricular activities.
  • A court order is required for the custodial parent to move more than 25 miles from their current location if they live in the Chicago metropolitan area.  If the residence is outside of the metropolitan area, a court order is required for a move greater than 50 miles.

If you still have questions about changes to custody law, read our article entitled Recent Changes to Illinois Divorce Law.

How Do Courts Determine Which Parent is the Primary Caretaker in Illinois in 2020?

When a mother and father cannot come to an agreement on parenting time or responsibility, the court will decide which parent will be awarded primary physical custody of the child.  This can be a particularly challenging decision when the child has a positive relationship with both parents, and the parents have a positive co-parenting arrangement.  As the state of Illinois recognizes the importance of the bond between caretaker and child to nurture positive and healthy psychological development, the court considers the day-to-day duties of each parent before making a decision about primary care.  Some of the criteria include:

  • Meal planning and preparation;
  • Bathing, grooming and dressing;
  • Purchasing clothes;
  • Laundry responsibilities;
  • Fostering participation in extracurricular activities;
  • Healthcare arrangements;
  • Teaching of reading, writing and math skills, including helping with homework;
  • Conferencing with teachers and attending parent-teacher conferences;
  • Planning and participating with leisure activities with the child; and more.

It is possible for a parent to be named the primary caretaker without fulfilling the majority of the responsibilities listed above, but only if there is a preponderance of evidence demonstrating that the choice is in the best interest of the child.

What is the Primary Caretaker Presumption in Child Custody Cases in Illinois 2020?

There are four custody presumption possibilities in every state:

  1. Presumption of joint custody
  2. Joint custody favored
  3. The presumption of primary custody
  4. No presumptions or favors

Illinois is a “no presumption or favors” state, so any of the custody agreements can be applied.  As a result, the Primary Caretaker Presumption is only one of many factors taken into consideration when allocating parenting time and responsibilities, as opposed to the sole deciding factor.  Under the Primary Caretaker Presumption, children are divided into three age groups: under the age of six; between ages six and fourteen; fourteen years old and over.  The older the child, the more weight the court gives to the preference of the child when selecting a primary caretaker.  Children under the age of six must defer to the court’s decision, children between ages six and fourteen may be asked if they have a preference of primary caretaker, and teenagers fourteen and up are permitted to name his or her custodian, as long as the court finds the parent fit for the responsibility.

Follow the link to learn more in our article, The Primary Caretaker Presumption in Illinois Child Custody Cases Explained.

How is the “Best Interests of the Child” Defined in Illinois in 2020?

All things considered, every state prioritizes the best interests of the children above all else.  In a “no presumptions or favors” state like Illinois, ensuring that the children will grow up in a safe and nurturing environment is paramount.  Some of the factors considered when determining parenting time and primary care include:

  • The wishes of each child (depending on age) and parent;
  • Relationship between each parent and child;
  • Adjustment to school and community;
  • The parents’ physical and mental health;
  • The parents’ and child’s religious preference;
  • The need for continuation of a stable home environment;
  • Whether the parents have the ability to cooperate;
  • One parent’s interference with the other parent’s relationship with the child;
  • Whether either parent is living with someone of the opposite sex;
  • Interaction and interrelationship with other members of the household;
  • Support and opportunity for interaction with members of extended family;
  • The parents’ work schedules and availability;
  • Whether the parent seeking custody is a natural parent;
  • Whether one parent has made false allegations of abuse;
  • Parental use of excessive discipline or emotional abuse; and
  • Evidence of parental drug, alcohol, or sex abuse.

Illinois courts believe that a positive relationship with both parents is best for children, as long as the child is safe and provided for appropriately.  Therefore, Illinois judges look at a wide array of factors and tend to rule in favor of shared parenting time and joint decision-making privileges whenever possible.  If you and your spouse would like to create your own parenting plan, it is most likely to be approved by a judge if the best interests of the children are the centerpiece of the arrangement.

For further detail, see our article entitled Factors Courts Consider for Child Custody Issues | Illinois Child Custody Factors.

What is a Parenting Plan for Allocation of Parenting Time and Responsibility in Illinois?

Each parent has a responsibility to submit his or her parenting plan within 120 days of asking the court for parental responsibilities.  If both parents fully agree on a plan and sign the document, they can submit one document to the court for approval instead of two.  If neither parent submits a plan, the court will hold a hearing to allocate parenting time and responsibilities.

To learn more about parenting plans and what they should include, check out our article entitled Parenting Plans Explained | Illinois Joint Parenting Agreements.

What if the Parents Can’t Agree on Allocation of Parenting Time and Responsibility?

If the parents cannot decide on a parenting plan, even after trying mediation to reach an agreement, the court will look at each parent’s plan and make a final determination based on the best interests of the child.  The court may also appoint a guardian ad litem to represent the child or children in court.  If a guardian ad litem is deemed necessary, it is typically the guardian ad litem’s responsibility to interview the parents and children, determine whether or not both parents are fit to be a caretaker, and present the findings in court to make a recommendation on the allocation of parenting time based on the best interests of the kids.

Additional information about the criteria used to make determinations in court can be found in our article entitled What Happens When a Divorce Goes to Trial in Illinois?

How Are Decision-Making Privileges and Parenting Time Determined in Illinois in 2020?

Parenting time can be determined by agreement between the parents or judicial decision by the court.  The best interests of the child always hold the most weight in the decision, and other factors include: the wishes of the parents and each child, how far the parents live from one another, the child’s school situation (including extracurricular activities), and the parents’ work schedule.  Decision-making is divided into two major categories: caretaking and non-significant decision-making responsibilities, and significant decision-making responsibilities.  Significant decision-making responsibilities are defined as:

  • Education;
  • Religion;
  • Medical care; and
  • Extracurricular activities

If there is no agreement between the parents, a judge will determine if the parents will have joint decision-making privileges for matters defined as “significant decisions,” or if one parent will handle “significant decisions,” thus granting the parent sole decision-making privileges.  Non-significant decisions and caretaking duties are always the responsibility of the parent who has physical custody of the child at the time the decision needs to be made.

For more information about the allocation of parenting time and decision-making privileges, take a look at our article entitled Allocation of Parenting Time & Responsibility Explained | Illinois Child Custody.

What is a Temporary Allocation Order in Illinois?

After a Petition for Dissolution of Marriage is filed, the parties must have the opportunity for written discovery and depositions before a trial can be held.  Typically this takes longer than the 120 days each parent is given to submit a parenting plan.  A temporary allocation order is used to distribute parenting time and responsibilities until a final parenting order is entered with the court.  Once the final order is made, it cannot be changed for two years from the date it was entered.  To acquire a temporary allocation order, a petition must be filed with the clerk of court.  A hearing will be set, and a judge will decide on terms for the order until the parties come to an agreement or the case goes to trial.

See our article entitled Illinois Temporary Child Support Orders | Temporary Orders Allocating Parenting Time and Responsibility for more information.

Can Allocation Agreements be Modified in Illinois?

Yes, both temporary and final parenting plans can be modified.  However, temporary allocation orders are much easier to change than permanent orders.  As stated above, a final allocation of parenting time agreement cannot be changed until two years have passed since its entry.  The process to modify a parenting agreement is the same whether it is temporary final.  The party seeking to modify the order must show that a “substantial change in circumstances” has occurred, and present a preponderance of evidence to demonstrate that the modification of the order is in the best interest of the child.

For additional details about modifying allocation or parenting time agreements, look at our article entitled How to Change Child Custody in Illinois | Parenting Time Modification Explained.

How Does an Unwed Father Get Visitation Rights in Illinois in 2020?

In cases of unwed parents, the father has no right to parenting time or decision-making until paternity is established.  Check out our article entitled Illinois Paternity Law Explained for details about how to establish paternity.  Although the state of Illinois encourages both parents to have a positive relationship with their children, an unwed father does not automatically acquire parental rights.  Establishing legal paternity gives the father the ability to file a motion with the court seeking parenting time and responsibilities.  Parenting rights can only be granted to an unwed father by the court.

See our article entitled Child Custody and Parenting Rights of Unmarried Fathers in Illinois for more information.

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