Illinois Child Custody Agreement

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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.

3. 3

   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.

4. 4

   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.

5. 5

   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.

6. 6

   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.

7. 7

   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.

Illinois Requirements for Child Custody Agreement

• Children's Terms Carved Out of the Settlement Rule, 750 ILCS 5/502(b)

  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.

• Agreed Plan Binding on the Court, 750 ILCS 5/602.10(d)

  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.

• Mandatory Plan Filing, 750 ILCS 5/602.10(a) and (b)

  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.

• Required Plan Contents, 750 ILCS 5/602.10(f)(1)-(15)

  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.

• Sixty-Day Change of Residence Notice, 750 ILCS 5/602.10(f)(8)

  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.

• Two Best Interest Lists, 750 ILCS 5/602.7(b) and 5/602.5(c)

  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.

• Restriction of Parenting Time, 750 ILCS 5/603.10(a)

  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.

• Relocation Thresholds and Notice, 750 ILCS 5/600(g) and 5/609.2

  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.

• Modification by Agreement, 750 ILCS 5/610.5(a), (d) and (e)(4)

  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.

• Enforcement and Finality, 750 ILCS 5/607.5 and 5/602.10(i)

  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.