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Kevin O'Flaherty

In this article we explain the primary caretaker presumption in Illinois child custody cases. When a mother and father cannot agree on parenting time and responsibility agreement, a family court judge has to decide which parent receives primary physical custody. This preference is usually given to the parent who is considered the child’s “primary caregiver.” In this article, we’ll provide an overview of exactly how courts define a “primary caregiver” and how this decision impacts child custody cases in Illinois.

For an overview of how courts determine parenting time and responsibility, check out our article: Illinois Parenting Laws 2019.

How Do Courts Determine Which Parent is the Primary Caretaker?

Psychologists often stress the importance of the bond between a child and his or her primary caregiver, or the parent or guardian who is most responsible for the child’s day-to-day care. This emotional connection is vital to a child’s developmental stages, so it’s imperative to nurture this relationship in order to ensure the child’s psychological stability. In other words, it’s in the child’s best interest to stay closely connected to his or her primary caretaker. However, in a marriage or co-parenting situation where a child has a positive relationship with both parents, who is considered the primary caretaker?

To answer this question, family courts focus on specific daily tasks, including:

·       Bathing, grooming, and dressing

·       Meal planning and preparation

·       Purchasing clothes and laundry responsibilities

·       Healthcare arrangements

·       Fostering participation in extracurricular activities

·       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

These are only a handful of the considered factors when it comes to determining the primary caregiver in child custody cases. In theory, the family court will see which parent performed majority of the above responsibilities on a daily basis, and that parent will be deemed the primary caretaker. Keep in mind: every state prioritizes the best interests of the children over everything else. Although one parent may perform more of the above tasks than another, a presumption is simply a starting point. It’s very common to reach an agreement outside of this presumption.

Under the primary caretaker presumption, children are divided into three age groups: 1) those under the age of six, 2) those between the ages of six and fourteen, and 3) those of fourteen years of age and older. For children under the age of six, an absolute presumption exists in favor of the primary caretaker as custodian, as long as he or she is fit to parent. For children between the ages of six and fourteen, the family court judge may listen to the children’s wishes. Finally, for teenagers ages fourteen and older, the child is permitted to name his or her custodian, as long as both parents are fit.

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

West Virginia is the only state that uses the Primary Caretaker Presumption as the sole factor for child custody determinations. For other states, like Illinois, this presumption is just one of many factors the state considers when determining parenting time and responsibility. In fact, there are four custody presumption possibilities: 1) the presumption of joint custody, 2) joint custody favored, 3) the presumption of primary custody, and 4) no presumptions or favors. The state of Illinois is a “no presumptions or favors” state, meaning any of these four custody agreements are a possibility.

If both parents can agree on a custody arrangement, Illinois courts are likely to go ahead and grant their wishes. This is a helpful advantage, but “no presumptions” states also have judges with the most authority to alter proposed custody arrangements if they truly believe an alternative direction is in the best interest of the child. For example, if both parents agree to a sole custody arrangement, but the Illinois judge disagrees, the court could order joint custody. To ensure your proposed custody agreement is approved, do your best to focus on the best interests of the child.

Because Illinois courts are truly concerned about the best interest of each child, some of the factors they consider when determining child custody arrangements include:

·       The child’s wishes, depending on age

·       The parents’ physical and mental health

·       The parents’ and child’s religious preference

·       The need for continuation of stable home environment

·       Support and opportunity for interaction with members of extended family

·       Interaction and interrelationship with other members of the household

·       Relationship between each parent and child

·       Adjustment to school and community

·       The age and sex of the child

·       Parental use of excessive discipline or emotional abuse

·       Evidence of parental drug, alcohol, or sex abuse

All in all, it’s best to stay civil and respectful towards the parent of your child, especially in front of said child. Children of divorce can maintain a positive, healthy relationship with both parents, as long as the parents do not involve the children in the custody battle in any way. As an Illinois resident, it’s important to keep your child’s best interest at heart when determining child custody arrangements.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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