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How to Get Custody of Your Child Back

Best Interest of the Child inscription on chalkboard.

If someone else has custody of your son or daughter, there are steps you can take to modify or reverse your child custody order in Illinois. A child custody lawyer can help you understand how to get custody of your child back and guide you through the legal process to increase your chances of success. Parents working to regain custody of their children must prove that it is in their children’s best interests. Parents should meticulously follow any conditions the court sets, retain legal counsel, and remain patient because the proceedings do, unfortunately, move slowly. Whatever the reasons behind the initial loss of custody, it can be an extensive process to rectify the issue. 

Best Interest of the Child inscription on chalkboard.

Understanding Child Custody in Illinois

Illinois determines custody based on the “best interests of the child” standard. Custody, also called responsibility, is typically sole or shared/joint. A Chicago family lawyer can help with custody and related issues such as visitation, child support, divorce, spousal support, and mediation.

The term, “child custody,” generally refers to which parent(s) have the authority to make significant decisions about the child, and with whom the child resides. In practice, the parent with whom the child lives most is usually the one with primary or sole custody. If the child lives equally or significantly with both parents, then joint custody typically applies.

When parents get divorced, they usually have the opportunity to decide for themselves who gets custody. A judge is likely to accept whatever decisions parents agree to, absent glaring miscarriages of justice. Sometimes, a parent gives custody to the other parent due to reasons such as guilt, feelings of inferiority, or substance abuse. Other times, the courts may take away custodial rights to a child for his or her safety. It can take a few months or even years for the noncustodial parent to realize he or she made a mistake and should have the right to be in the child’s life more. 

Sole Custody or Sole Responsibility

Under sole legal custody, one parent has the right to make major decisions. Under sole physical custody, the child lives entirely with the primary parent. That parent can listen to the other parent’s opinions during the decision-making process but does not have to. 

Joint Custody or Shared Responsibility

With joint legal custody, both parents have a shared responsibility and right to make major decisions. Additionally, the child will alternate which parent he or she resides with based on a predetermined schedule. 

Petitioning the Court for Custody

A child custody lawyer can help you petition the court for custody. Earning custody without a lawyer is possible, but the chances of success increase with an attorney. The same idea applies if you are seeking visitation or a modification in the existing custody arrangement.

When you are a parent seeking custody, you must know what you should not do in a custody case (and what to do). For instance, parents should make child support payments on time and avoid verbal and physical conflicts and fights. Additionally, they should wait to introduce children to new dating partners, and always let the other parent know before traveling with the children. It is also important to know what can be used against you in a child custody case. Co-parenting with the other party while custody is pending, rather than making major parenting decisions solo, looks best to a judge. Collaborative approaches go a long way.

The court may appoint a guardian ad litem to talk with your children and discover their perspectives of your behavior. Even one minor shouting match with the other parent could come back to hurt you.

If you are under court mandates or conditions, such as completing a treatment program, going to counseling, or taking care of safety issues in your home, keep following them. Missing just one step has the potential to derail your custody case. Go to all court hearings, and be on time for visitation with your children.

It can also help to request an evaluation. Child custody psychologists or similar witnesses testify about your case. They touch on areas such as your relationship with the children, your home environment, and any changes you have made in your life, if applicable. Your attorney will have experience working with these witnesses and will be able to get the ball rolling with expert selection.

Best Interest of the Child Standard in Illinois

In Illinois, the “best interest of the child” standard assesses factors such as the parents’ own desires about custody, the child’s wishes (especially regarding older children), and the relationship and interaction between the child, parents, any siblings, and other family members and loved ones. Much more goes into this standard, including:

  • How willing and able each parent is to encourage a loving, close relationship between the child and the other parent
  • The child’s preferences
  • Whether parental abuse or violence has been present or is present
  • How enmeshed the child is in his or her home, community, and school
  • How far do the parents live from each other
  • The parents and child’s mental, physical, and emotional health

Can children choose which parent to live with?” is a question that comes up often. Strictly speaking, they cannot, but the courts often consider their preferences. The older the child, the more weight the court often places on the child’s wishes. A Guardian Ad Litem collaborates with children to understand their preferences and perspectives as far as parenting time and custody. Children cannot decide which parent to live with themselves for many reasons. For one thing, what they think is better for them may actually not be in their best interests.

For instance, kids need structure but do not always realize it. Sometimes, children want to live with a parent who is emotionally manipulative or abusive, who has no rules, who allows anything to fly, or who enables all types of unsafe behavior. This typically is not in children’s best interest if the other parent is more stable.

Can a parent be denied parenting time in Illinois?” is another common question asked during custody considerations. In a nutshell, a parent can be denied parenting time if it is deemed in the child’s best interests. If courts feel that parents threaten their children’s safety, the parent is a sex offender (or living with one), is abusive, or is addicted to substances, the courts could deny parenting time with the children.

When parents ask, “How do I get custody of my child back?” it always comes down to the best interests of the child. Whenever possible and all things equal, it is best for children to have both parents as equal, vigorous participants in their life. The courts recognize this.

How to Win Back Custody of Your Child

You maximize your chances of winning back custody with a lawyer in your corner. Lawyers can help you understand why you lost custody in the first place and offer actionable steps and solutions to address the problem.

Many lawyers offer consultations, so don’t necessarily settle for the first one you interview. Ask questions such as, “How do I get custody of my child back?” Inquire about their experience in child custody cases, and ask about fees.

The money may seem steep, but you are at a huge disadvantage if you try to navigate a child custody battle on your own. Lawyers have formal training in custody issues and are skilled in advocating for their clients and their clients’ children.

Without representation, you risk missing critical nuances in your case and the court system. You also risk making mistakes on paperwork and misfiling it. Many parents who go it alone never find out about important strategies they could have used to get custody. If your intention is sole custody rather than joint, you have a higher hill to climb. It is easier for a lawyer, rather than an untrained person, to present the facts of your sole custody case in the best light possible.

The paperwork is likely to include pretrial orders, child support worksheets, and temporary custody orders. Lawyers also assist with reference letters, witness preparation for court, and character references. They know about the judge you are assigned and approaches that the judge likes and dislikes. Lawyers also help you prepare for tough and tricky questions. 

If your case involves violence, abuse, or domestic violence, you definitely want a lawyer. Your lawyer speaks with the other party’s representation to ensure the other side never gets your address and other key information. Restraining orders and orders for protection may be involved as well.

The wheels of the legal system spin slowly. Even with a lawyer, regaining custody requires preparation, hard work, and time. Patience is key and an important part of a custody battle. While you are waiting for your case to be resolved, do everything you are supposed to. Be on top of the parenting game. Show up for scheduled visits, birthdays, sports, extracurriculars, parent meetings, and more. Avoid verbal and physical confrontations. Go through third parties to co-parent if you and the other party do not get along well enough one-on-one. Don’t give the judge a reason to deny you custody.

What You Should Know About How to Get Custody of Your Child Back

The following can help parents understand what to expect at custody hearings and how unique situations are handled when regaining custody of their children.

Children rarely testify during custody hearings:  Illinois allows children to testify in custody hearings, but cannot force them to do so.  A Guardian Ad Litem usually testifies and not the children.

Judges may interview children outside the courtroom. Interviews take place without the parents present and are just the judge, the child, and both parents’ attorneys in the judge’s office. A court reporter is there as well to record the interview for use during the trial. Any critical things a child says must be corroborated by other evidence if it is to be used in hearings.

Parents living in different states: Say you live in Illinois, and your ex and child live in Wisconsin. Where you file the petition depends on the circumstances of your case. For example, if you had custody of your children, but your ex moved them to Wisconsin without your permission, you may be able to file in Illinois.

Any default preference for mothers: Courts do not “default” to mothers for custody. Instead, the standard is in the best interest of the child.

Military service: If you are in the military, you need to show how you can handle custody while carrying out military duties. It is doable, but can be tricky. Being in the military does confer advantages such as travel, daycare, recreational facilities, and high-quality schools.

Your ex cheated, or your ex likes to party: It is unlikely that the fact of your ex cheating on you plays a role in custody. However, related issues could. If the cheating meant your ex was out often and neglected your children, that could be critical. Similarly, your ex liking to party is not disqualifying. You must show the impact on the children such as if your ex is frequently gone, drunk or high around the children, or putting them in unsafe situations.

Regaining custody of your child typically requires a mix of professional legal help, patience, and you following conditions set by the court. Keep the “best interests of the child” standard in mind as you navigate the process. Make sure you can explain how the actions you take are in your child’s best interests. 

Uncontested divorce lawyer Denise Erlich is passionate about helping divorcing couples in the greater Chicagoland area transition to their new life as seamlessly as possible. Ms. Erlich patiently guides her clients through every step of the divorce process and provides clients with candid advice about their case and legal options, so they can make informed decisions about their future.

Years of Experience: More than 20 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association U.S. District Court, Northern District of Illinois
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