DIVORCE AND CHILD CUSTODY
The best interest guidelines in the Marriage and Dissolution of Marriage Act (750 ILCS 5) determine
custody between two parents whether or not they were actually married. Another caregiver may file a
petition in the Domestic Relations Division if the child is not in the physical custody of either parent.
DIVORCE:
1. Even if a woman is anxious to get a divorce, in most cases she should wait until she is released from
incarceration! The court can not grant her custody of her child while she is locked up, and the judge may
have to award custody to the father even if he is not the better parent to raise the child.
Exception: If the dad abused the kids, and the woman charged with failing to protect the kids from him,
she may want to proceed with a divorce. Also, if the husband battered the client and the children are in the
custody of DCFS or a guardian, custody will be reserved, so this can constitute another exception.
2. If a woman receives a divorce summons for Cook County, and she does not have a divorce lawyer, she
should let us know as soon as she is served and give us a copy of the dissolution petition. If the dissolution
is filed in Cook County CLAIM may be able to represent her. SHE ONLY HAS 30 DAYS TO FILE
HER RESPONSE. If you meet with a woman who has been served with divorce papers it is
important that you inform us right away and get a copy of the petition she was served with if
possible. Even if a woman is served with divorce papers and the divorce is not in Cook County we may
be able to help her draft a response and file it by mail. It is important that we are informed immediately if
she has been served with divorce papers and wants further assistance.
If a woman receives a divorce summons for Cook County, and she does not already have a divorce lawyer,
please ask a correctional staff member to make a copy for you to bring back to us, or ask them to fax it to
CLAIM at 312-675-0915 with a request for representation. CLAIM might be able to represent the
woman.
If CLAIM staff cannot meet with her in time, and if you can take the time to help her draft a response
paragraph by paragraph, please help her file her response pro se. We can give you sample responses,
blank Appearance forms and Rule 298 applications, and Notice of Filing forms. When filing pro se from a
correctional center, it is important to place the case name and number on the front of the envelope
addressed to the Clerk of Court, and to include a cover letter and request that file-stamped copies be sent
back.
3. Similarly, if the father files a petition for determination of paternity and/or custody, he will be able to
get temporary or even permanent custody of the child if the mother is not able to care for her child, unless
she can show that there is a very serious reason why he should not have custody and the mother has
someone reliable file a petition to intervene in the case. THE MOTHER MUST FILE A RESPONSE or
the court will hold her in default and grant the father’s petition. AGAIN it is important that if she is
served, we be informed immediately and, if possible, get a copy of the papers she was served with.
4. Once a divorce or custody case is completed, the mother will probably be stuck with that judgment for
a long time. A petition for modification of custody can NOT be filed within two years of a judgment,
except by agreement of the parties, unless the children are seriously endangered in their current
home. After two years from the date of entry of judgment, a petition for change in custody can be filed on
the basis of a change in circumstances in the custodial home AND that the change in custody is in the
children's best interest. This is an easier standard than showing endangerment--a change could include
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the children's wishes to live with the mother now or a daughter entering her teen years. If the father files
for divorce or custody, it may be possible to delay entry of judgment until the mother is released and back
on her feet, to preserve her chance of having custody of the kids. If the father is awarded custody, the
mother probably will not be able to win back custody in the near future, because courts favor the status
quo, assuming the children are doing okay. However, she may be able to win extensive visitation once she
can demonstrate stability.
5. The mother should try to get the court to order at least some visitation with the children, even if only by
telephone. Visitation can be modified at any time, so if the mother is released and can show a period of
sobriety and stability, there is a strong chance that she will be able to get court-ordered visitation when she
no longer is in the jail.
Parents are supposed to be granted reasonable visitation rights unless the court finds after a hearing that
such visits would “endanger seriously the child's physical, mental, moral or emotional health.”
750 ILCS 5/607. In some circumstances, barrier visits at the jail may fall under this standard. If no
case is pending, the mother may want to wait until she is released, or even transferred to a prison where
the visiting room is child-friendly, to petition for visits. However, it is crucial to maintain contact and to
document this.
Standing to petition for visitation:
In a divorce or custody case, the maternal grandparents or siblings may have standing to petition
for visitation with the child even if the mother is not awarded visitation. Under 750 ILCS 5/607 a-5,
they have standing in certain circumstances, including:
 If the parents are divorced or legally separated in the three months prior to filing the
petition and one parent does not object;
 If one parent has been in jail or prison for the three months prior to filing the petition.
BEST INTEREST of the Child Standard:
The judge looks at “best interest” factors (750 ILCS 5/602) to decide custody and visitation arrangements.
“Best Interest of Child. (a) The court shall determine custody in accordance with the best interest of
the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any
other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether
directed against the child or directed against another person;
(7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act
of 1986, whether directed against the child or directed against another person; and
(8) the willingness and ability of each parent to facilitate and encourage a close and continuing
relationship between the other parent and the child.
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