Illinois Child Custody Agreement
Illinois takes the children's terms out of the settlement agreement rule and then hands them a stronger one of their own.
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Introduction
In Illinois the document is a parenting plan, and the children's terms sit outside the usual settlement agreement rule. Under 750 ILCS 5/502(b) a marital settlement agreement is binding on the court unless it is unconscionable, but that section expressly excludes the terms providing for the support and parental responsibility allocation of children. Those terms are routed instead to 750 ILCS 5/602.10(d), which is the better rule for parents who agree: a written parenting plan signed by both parents is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child, and a court that does not approve the plan shall make express findings of the reason or reasons for its refusal. Illinois also stopped using the word custody in 2016; the Act now allocates parental responsibilities, split into significant decision-making responsibilities and parenting time, and the resulting order is an allocation judgment. Filing a plan is not optional. Under 750 ILCS 5/602.10(a), all parents must file a proposed parenting plan, jointly or separately, within 120 days after service or filing of any petition for allocation of parental responsibilities, and the statute sets out fifteen things the plan must contain at a minimum.
Key Things to Know
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Illinois runs a two-step that is easy to get backwards. 750 ILCS 5/502(b) makes a settlement agreement binding unless unconscionable, and then removes the children's terms from that rule. Those terms are governed by 750 ILCS 5/602.10(d) instead, where an agreed written parenting plan signed by both parents is binding upon the court unless the court finds that the agreement is not in the best interests of the child. The unconscionable test never applies to the parenting terms, and the best interests test is not a higher evidentiary standard such as clear and convincing evidence.
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A judge who refuses an agreed plan has to give reasons. 750 ILCS 5/602.10(d) provides that if the court does not approve the parenting plan, it shall make express findings of the reason or reasons for its refusal, and it allows the court, on its own motion, to conduct an evidentiary hearing on whether the plan is in the child's best interests. Illinois says this in the statute itself, so the default runs in the parents' favor while the court keeps the last word.
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A parenting plan is mandatory in Illinois, whether or not you agree. Under 750 ILCS 5/602.10(a), all parents must file a proposed plan jointly or separately within 120 days after service or filing of any petition for allocation of parental responsibilities, though no plan is required if the respondent has filed no appearance unless the court orders one, and the 120 days can be extended for good cause. Filing nothing does not end the matter: 750 ILCS 5/602.10(b) requires the court to conduct an evidentiary hearing to allocate parental responsibilities where no plan is filed.
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Illinois prescribes what the plan must contain, and the list is a floor. 750 ILCS 5/602.10(f) sets out fifteen items, including the allocation of significant decision-making responsibilities, a parenting time schedule or a method for determining one in sufficient detail to be enforced, a mediation provision for proposed reallocations, each parent's right of access to records, the designation of the parent with the majority of parenting time, the child's residential address for school enrollment purposes only, contact and employment information, notification and transportation provisions, and communication with the child during the other parent's time. The personal information items are not required where there is evidence of, or the plan states, a history of domestic violence or abuse, or where release would not be in the child's or a parent's best interests.
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Every Illinois plan carries a 60-day notice rule for any change of residence, unless the domestic violence carve-out in 602.10(f) applies. 750 ILCS 5/602.10(f)(8) requires the plan to include a term obliging a parent who changes residence to give at least 60 days prior written notice to the other parent, stating the intended date of the change and the address of the new residence, or the earliest practicable date where 60 days is impracticable. This sits on top of the separate relocation rules and applies to moves far too short to count as a relocation.
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The vocabulary changed in 2016 and the change was structural, not cosmetic. Illinois allocates parental responsibilities, and 750 ILCS 5/801(e) states that the term parental responsibility is used in place of custody and related terms. The old sections that created joint custody and the joint parenting agreement were repealed, custody was split into significant decision-making responsibilities under 750 ILCS 5/602.5 and parenting time under 750 ILCS 5/602.7, and 602.5(a) states that nothing in the Act requires that each parent be allocated decision-making responsibilities. Visitation still exists in the Act but now refers to time granted to non-parents under 750 ILCS 5/602.9, so calling a parent's time visitation is the wrong label in Illinois.
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Illinois has two factor lists because it allocates two things: 750 ILCS 5/602.7(b) sets out seventeen factors for allocating parenting time, and 750 ILCS 5/602.5(c) sets out fifteen for allocating significant decision-making responsibilities. They overlap but are not the same, and both are open, each introduced by a direction to consider all relevant factors including without limitation and each closing with a catch-all. Domestic violence and abuse appear in both lists as required considerations rather than as a presumption, and 750 ILCS 5/603.10(a) is the section that actually restricts parenting time, on a finding by a preponderance of the evidence of conduct that seriously endangered the child. If abuse or a protective order is part of your situation, that is a matter for a lawyer rather than a form.
Key decisions before you file
Before you file a Child Custody Agreement in Illinois, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Illinois Requirements for Child Custody Agreement
The section that makes a settlement agreement binding on the court unless unconscionable expressly excludes the terms providing for the support and parental responsibility allocation of children. The parenting terms should be drafted as a parenting plan governed by Section 602.10 rather than as ordinary settlement terms.
A parenting plan in writing and signed by both parents is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence, that the agreement is not in the best interests of the child. A court that does not approve the plan must make express findings of its reasons, and may hold an evidentiary hearing on its own motion.
All parents must file a proposed parenting plan, jointly or separately, within 120 days after service or filing of any petition for allocation of parental responsibilities, subject to a carve-out where the respondent has filed no appearance and to extension for good cause. Where no plan is filed, the court must conduct an evidentiary hearing to allocate parental responsibilities.
Fifteen items must appear at a minimum, including the allocation of decision-making, a parenting time schedule or method detailed enough to be enforced, a mediation provision, records access, the majority parenting time designation for Section 606.10, the school enrollment address, contact and employment details, notification and transportation terms, communication with the child, relocation and future modification provisions, and any right of first refusal terms. The residence, phone and employment items, and the change-of-residence notice item, are excused where there is a history of domestic violence or abuse.
The plan must require a parent changing residence to give at least 60 days prior written notice to the other parent, stating the intended date of the change and the address of the new residence, or notice at the earliest practicable date. This term applies to any change of residence and operates independently of the relocation rules.
Seventeen factors govern the allocation of parenting time and fifteen govern the allocation of significant decision-making responsibilities. Both lists are open, being introduced by a direction to consider all relevant factors including without limitation and closing with a catch-all, so a plan that speaks to them is easier for a court to assess.
Both parents are presumed fit, and the court may restrict parenting time only after a hearing and a finding by a preponderance of the evidence that a parent engaged in conduct that seriously endangered the child's mental, moral, or physical health or significantly impaired the child's emotional development. Available restrictions range from reduced or supervised parenting time to exchanges through an intermediary and treatment program requirements.
A move is a relocation more than 25 miles from the child's current primary residence where that residence is in Cook, DuPage, Kane, Lake, McHenry or Will County, beyond 50 miles from any other Illinois county, or beyond 25 miles to an address outside Illinois, measured by an internet mapping service using surface roads. Written notice is due at least 60 days in advance with a copy filed with the circuit clerk, and a notice signed by the non-relocating parent and filed allows the move without any further court action.
The court shall modify a parenting plan or allocation judgment in accordance with a parental agreement unless it finds the modification is not in the child's best interests. Stipulation lifts the usual two-year restriction on modifying decision-making, and agreement removes the changed-circumstances requirement, so the document should state that changes are presented to the court rather than kept between the parents.
The court must provide an expedited procedure for enforcing allocated parenting time, with findings made on a preponderance of the evidence. A plan or allocation judgment is final once approved or entered, but becomes void and unenforceable if the underlying action is later dismissed.
Frequently Asked Questions
The court's job changes from deciding to reviewing. 750 ILCS 5/602.10(d) provides that a parenting plan in writing and signed by both parents is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child. That is a different and better rule than the one for the rest of a settlement agreement, because 750 ILCS 5/502(b) expressly excludes the terms providing for the support and parental responsibility allocation of children from the binding-unless-unconscionable rule. Illinois repeats the same deference at modification in 750 ILCS 5/610.5(d).
Yes. The plan is binding on the court only in the sense that the court must approve it unless it makes a contrary best interests finding, and it takes effect as an allocation judgment when the court enters it. Under 750 ILCS 5/602.10(d), a court that does not approve the plan shall make express findings of the reason or reasons for its refusal, and the court may on its own motion hold an evidentiary hearing on whether the plan is in the child's best interests. One further point catches people out: 750 ILCS 5/602.10(i) provides that if the underlying action is later dismissed, the parenting plan or allocation judgment is void and unenforceable.
Yes. 750 ILCS 5/602.10(a) requires all parents to file a proposed parenting plan with the court, either jointly or separately, within 120 days after service or filing of any petition for allocation of parental responsibilities. Parents who agree file one plan jointly. No plan is required if the respondent has filed no appearance unless the court orders one, and the court can extend the 120 days for good cause. If no plan is filed, 750 ILCS 5/602.10(b) requires the court to conduct an evidentiary hearing to allocate parental responsibilities, so skipping the plan converts an agreed case into a contested one. 750 ILCS 5/602.10(d) also lets parents agree upon and submit a plan at any time after the proceeding starts until a judgment of dissolution is entered.
750 ILCS 5/602.10(f) lists fifteen items that a plan must set forth at a minimum: the allocation of significant decision-making responsibilities; provisions for living arrangements and parenting time, either a schedule of which parent's home the child is in on given days or a method for determining one in sufficient detail to be enforced later; a mediation provision for any proposed reallocation, unless one parent has all decision-making; each parent's right of access to medical, dental, psychological, child care, school and extracurricular records; the designation of the parent with the majority of parenting time for purposes of Section 606.10; the child's residential address for school enrollment purposes only; each parent's residence and employment details; a 60-day change of residence notice term; notification of emergencies, health care, travel and other significant issues; transportation arrangements; communication with the child, including electronic communication, during the other parent's time; provisions for a future relocation if applicable; provisions for future modifications if specified events occur; right of first refusal terms if wanted; and any other provision addressing the child's best interests or facilitating cooperation. The residence, phone and employment items, and the change-of-residence notice item, are excused where there is a history of domestic violence or abuse or release would not be in the child's or a parent's best interests. Child support is calculated separately and is not settled by the plan.
Not for parents. Illinois allocates parental responsibilities, and 750 ILCS 5/801(e) states that the term parental responsibility is used in place of custody and related terms such as custodial and custodian, while preserving rights under orders entered before the change. The old sections creating joint custody and the joint parenting agreement were repealed in 2016 and replaced with two separately allocable things: significant decision-making responsibilities under 750 ILCS 5/602.5 and parenting time under 750 ILCS 5/602.7. Visitation survives in the Act but now means time granted to non-parents such as grandparents and siblings under 750 ILCS 5/602.9, so a parent's time should be called parenting time.
Two lists, because Illinois allocates two things. 750 ILCS 5/602.7(b) sets out seventeen factors for allocating parenting time, and 750 ILCS 5/602.5(c) sets out fifteen for allocating significant decision-making responsibilities. Both begin with a direction to consider all relevant factors including without limitation, and both close with a catch-all for any other factor the court expressly finds relevant, so neither is a closed list. The lists do not switch off when parents agree: 602.7(b) applies unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, and best interests is the same concept the court applies when deciding whether to approve under 602.10(d).
By going back to the court, but agreement makes it markedly easier. 750 ILCS 5/610.5(d) provides that the court shall modify a parenting plan or allocation judgment in accordance with a parental agreement unless it finds that the modification is not in the child's best interests. Agreement also lifts procedural gates: 610.5(a) allows a motion to modify decision-making inside the usual two-year window by stipulation of the parties, and 610.5(e)(4) removes the changed-circumstances requirement where the parties agree to the modification. One caution runs the other way, 610.5(e)(3), which lets a court later modify a plan that it would not have approved under Sections 602.5 or 602.7 had it known the circumstances at the time.
The threshold depends on which county the child lives in now. Under 750 ILCS 5/600(g), a move within Illinois is a relocation at more than 25 miles if the child's current primary residence is in Cook, DuPage, Kane, Lake, McHenry or Will County, and at more than 50 miles from any other Illinois county, while any move to a residence outside Illinois counts at more than 25 miles. Distances are measured by an internet mapping service using surface roads, taking the shortest of any alternative routes. 750 ILCS 5/609.2(c) requires written notice to the other parent at least 60 days before the move, or at the earliest date practicable, with a copy filed with the circuit clerk. If the non-relocating parent signs that notice and the relocating parent files it, 609.2(e) allows the relocation without any further court action. If not, the relocating parent files a petition and the court decides under the eleven factors in 609.2(g). Only a parent allocated a majority of parenting time, or either parent where parenting time is equal, may seek to relocate with the child.
Through the allocation judgment, not the signatures. 750 ILCS 5/607.5(a) requires the court to provide an expedited procedure for the enforcement of allocated parenting time, and 607.5(c) sets the finding at a preponderance of the evidence. 750 ILCS 5/502(e) provides that terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms, so the contract character depends on the terms being in the judgment. An agreement that was never submitted and entered has neither route available.
Illinois handles it through required factors and a restriction power rather than a presumption. Physical violence or the threat of physical violence directed against the child or another member of the child's household, and the occurrence of abuse against the child or another household member, are listed factors in both 750 ILCS 5/602.7(b) and 750 ILCS 5/602.5(c). The operative remedy is 750 ILCS 5/603.10, which lets the court restrict parenting time in a range of ways, from reduced or supervised time to exchanges through an intermediary and abstention from alcohol or drugs during parenting time, but only after a hearing and a finding by a preponderance of the evidence that a parent engaged in conduct that seriously endangered the child's mental, moral, or physical health or significantly impaired the child's emotional development. Otherwise both parents are presumed fit. The plan content rules also let the personal information items be left out where there is a history of domestic violence or abuse. If this is your situation, talk to a lawyer before filing anything.