Illinois Child Custody Laws: Decision-Making and Parenting Time

Illinois child custody laws were rewritten in 2016, and the state no longer uses the words “custody” or “visitation.” Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/), a court now does two separate things: it allocates parental responsibilities, meaning who has authority to make major decisions about the child, and it sets parenting time, meaning the schedule of when the child is physically with each parent. A judge can split those two questions in ways an older “sole custody” or “joint custody” label never captured.

Decision-Making Authority

Under 750 ILCS 5/602.5, the court divides decision-making across four categories: education, health care, religion, and extracurricular activities.¹ These are not bundled. A judge can give one parent sole authority in all four, split them between the parents, or require joint decisions on some and sole authority on others. One parent might handle medical decisions while the other manages schooling, based on each parent’s involvement and competence in those areas.

Everyday decisions about meals, bedtime, and routine discipline belong to whichever parent has the child at the time. Those don’t require the other parent’s sign-off.

Parenting Time

Parenting time is the schedule that spells out when the child is in each parent’s physical care. The parent on duty handles homework, meals, and transportation during that stretch. Illinois presumes both parents are fit, and a court will not restrict a parent’s time unless there is evidence that the parent’s involvement would seriously endanger the child’s physical, mental, moral, or emotional health.² That is a high bar. Disliking the other parent’s new partner or disagreeing with household rules does not clear it.

A typical schedule covers the regular weekly rotation and lays out holidays, school breaks, birthdays, and summer vacation. If the parents cannot agree, the judge sets one.

How Judges Decide: The Best Interest Standard

Every decision about parenting time and decision-making authority runs through a “best interest of the child” analysis. Illinois has two overlapping but distinct lists of factors: one for decision-making under Section 602.5 and one for parenting time under Section 602.7. Judges weigh them together instead of treating any single factor as controlling.

Factors for Decision-Making

When dividing authority, the court looks at 15 factors that include the child’s wishes (weighted by maturity), how well the child has adjusted to home, school, and community, the mental and physical health of everyone involved, and each parent’s willingness to encourage a close relationship with the other parent.¹ The court also examines how much each parent participated in major decisions before the case was filed and whether there is a history of domestic violence or abuse.

Factors for Parenting Time

The parenting-time factors overlap but add wrinkles that matter. The court examines how much time each parent spent performing actual caretaking during the two years before the petition, or since birth if the child is under two.³ The judge also considers each parent’s willingness to put the child’s needs first, the logistics of transporting the child between households, and any military family-care plan if a parent is in the Armed Forces. A catch-all factor lets the judge weigh anything else genuinely relevant.

The Parenting Plan

Every parent in an allocation case must file a proposed parenting plan within 120 days of filing the petition, or within 120 days of being served if the other parent filed first. Parents can file a plan jointly or submit competing proposals. Courts can extend the deadline for good cause, but missing it without a reason is not a good look.⁴

At minimum, the plan must cover:

Which parent holds decision-making authority over education, health, religion, and extracurricular activities
A parenting-time schedule detailed enough to enforce, including regular weeks, holidays, and school breaks
A mediation or dispute-resolution process for future disagreements
Whether a parent must offer the other parent care of the child before using a babysitter or third party for a significant period (the “right of first refusal”)⁵
Each parent’s address, phone number, and employer, plus a designated residential address for school enrollment
How the child gets between households
A requirement that either parent give at least 60 days’ written notice before moving

If the parents agree, the court approves the plan unless it isn’t in the child’s best interests. If they cannot agree, the court holds an evidentiary hearing and sets the terms.⁴

How a Case Moves Through Court

A case begins when one parent files a petition for allocation of parental responsibilities in the circuit court. Filing fees vary by county and generally run a few hundred dollars. If you cannot afford the fee, Illinois offers full and partial fee waivers under 735 ILCS 5/5-105 based on income relative to the federal poverty level.⁶

The other parent has to receive formal notice through service of process. Once both sides have appeared, the court will typically order mediation. Illinois Supreme Court Rule 905 requires every judicial circuit to have a mediation program for allocation cases.⁷

If mediation doesn’t produce an agreement, the case goes to trial. The judge hears testimony, reviews evidence, and enters an Allocation Judgment that becomes a binding court order. In serious disputes, the court may appoint a guardian ad litem to investigate and represent the child’s interests, and those fees can add thousands to the cost of the case.

Emergency Orders

When a child faces immediate danger, a parent can file an emergency motion for temporary allocation of parental responsibilities. Under 750 ILCS 5/603.5, a court can enter a temporary order without full notice or a hearing if it finds that immediate harm or irreparable injury would result. Grounds that courts take seriously include physical abuse, substance abuse that endangers the child, credible threats of neglect, or a real risk that the other parent will flee with the child. These orders last only until a full hearing.

Changing an Order Later

The rules for modifying decision-making authority are different from the rules for modifying parenting time. This is where a lot of parents get confused.

Changing Decision-Making Authority

A parent generally cannot ask to change who holds decision-making authority until at least two years after the original order. The only way around that waiting period is to show, through sworn statements, that the child’s current situation seriously endangers the child’s mental, moral, or physical health or is significantly impairing emotional development.⁸ After two years, you still need to prove a substantial change in circumstances.

Changing Parenting Time

Parenting time uses a more flexible standard. The statute says parenting time “may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.”⁸ There is no two-year wait. A new work schedule, a child starting school, or a move to a different neighborhood can each justify revisiting the schedule.

Changes Without Proof of Changed Circumstances

A court can also modify the plan without proof that circumstances changed when the proposed modification reflects how the child has actually been living for the past six months without objection, when it’s a minor adjustment, when the original plan was agreed to under circumstances the court wouldn’t have approved, or when both parents consent.⁹ Courts can sanction parents who repeatedly file frivolous modification motions.

When a Parent Wants to Move

Once an allocation order is in place, moving with the child triggers 750 ILCS 5/609.2. Illinois defines “relocation” by distance and geography: more than 25 miles from the current residence within Cook, DuPage, Kane, Lake, McHenry, or Will counties; more than 50 miles from the current residence elsewhere in the state; or any move outside Illinois beyond 25 miles from the current residence.

A parent who wants to relocate must give the other parent at least 60 days’ written notice with the intended move date, the new address if known, and how long the relocation will last. A copy also goes to the circuit court. If the other parent signs off, the relocation proceeds and the court modifies the parenting plan. If the other parent objects, the relocating parent has to petition the court for permission. The judge then weighs the reasons for and against the move, each parent’s relationship with the child, effects on schooling and community ties, and whether a workable revised schedule is realistic.¹⁰ Skipping the notice can be treated as bad faith, and the court can award the other parent attorney’s fees.

Restrictions When a Child Is at Risk

When a parent’s behavior puts the child at risk, the court has broad authority under 750 ILCS 5/603.10. If a judge finds by a preponderance of evidence that a parent’s conduct seriously endangered the child, remedies include reducing or eliminating parenting time, requiring supervised exchanges, ordering the parent to abstain from alcohol or drugs during and immediately before parenting time, barring specific people from being present, and requiring completion of a treatment program.¹¹

A parent convicted of a sex offense against a victim under 18 loses parenting time entirely while incarcerated and during any period of parole, probation, or supervised release for that felony, until the court finds that resuming contact is in the child’s best interests.¹¹ The court can also require a parent to post a bond guaranteeing the child’s return after visits.

Unmarried Parents: Establish Parentage First

Married parents are both presumed to be legal parents from birth. Unmarried parents have an extra step. Parentage must be legally established before either parent can file for parenting time or decision-making authority, and without it an unmarried father has no enforceable rights regardless of biological connection.

The simplest route is a Voluntary Acknowledgment of Parentage, signed by both parents (often at the hospital). Once filed with the Illinois Department of Healthcare and Family Services, it carries the same legal weight as a court judgment. When paternity is disputed, either party can petition the court under the Illinois Parentage Act of 2015 (750 ILCS 46). The court can order genetic testing, and if results show at least a 99.9 percent probability of parentage, the alleged parent is presumed to be the child’s parent.¹² After parentage is established, the same best-interest standards apply.

Which State Decides When Parents Live Apart

When parents live in different states, the first question is which state’s court has authority. Illinois adopted the Uniform Child-Custody Jurisdiction and Enforcement Act (750 ILCS 36), which gives jurisdiction to the child’s “home state,” meaning the state where the child has lived for at least six consecutive months before the case is filed.¹³ If the child recently moved but a parent still lives in the original state, that state can keep jurisdiction for up to six months after the child left.

Once an Illinois court enters the initial allocation judgment, it generally keeps exclusive authority to modify it as long as Illinois remains the home state or a parent still lives here. The federal Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) requires every state to honor custody orders issued by a state that properly had jurisdiction. A parent who takes the child to another state hoping for a friendlier ruling will usually find that court declines the case.

Claiming the Child on Taxes

The IRS decides which parent claims the child based on where the child slept more nights during the tax year. The parent with the majority of overnights is the “custodial parent” for tax purposes and gets the dependency exemption and the child tax credit by default. If overnights are exactly equal, the tiebreaker goes to the parent with the higher adjusted gross income.¹⁴

A custodial parent can sign IRS Form 8332 to release the dependency claim to the other parent for one year or multiple years. Many Illinois parenting plans address this directly. Both parents cannot claim the same child in the same year, and the IRS flags duplicate claims, so it is worth resolving in the parenting plan rather than fighting each April.¹⁴

1
Illinois General Assembly. Illinois Code 750 ILCS 5/602.5 – Allocation of Parental Responsibilities: Decision-Making
2
Illinois General Assembly. Illinois Code 750 ILCS 5/602.7 – Allocation of Parental Responsibilities: Parenting Time
3
Illinois General Assembly. Illinois Code 750 ILCS 5/602.7 – Allocation of Parental Responsibilities: Parenting Time
4
Illinois General Assembly. Illinois Code 750 ILCS 5/602.10 – Parenting Plan
5
FindLaw. Illinois Code 750 ILCS 5/602.3 – Care of Minor Children; Right of First Refusal
6
Illinois General Assembly. Illinois Code 735 ILCS 5/5-105 – Waiver of Court Fees
7
Supreme Court of Illinois. Rule 905 – Mediation
8
Illinois General Assembly. Illinois Code 750 ILCS 5/610.5 – Modification
9
FindLaw. Illinois Code 750 ILCS 5/610.5 – Modification
10
Illinois General Assembly. Illinois Code 750 ILCS 5/609.2 – Parent’s Relocation
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Illinois General Assembly. Illinois Code 750 ILCS 5/603.10 – Restriction of Parental Responsibilities
12
Child Welfare Information Gateway. The Rights of Unmarried Parents – Illinois
13
Illinois General Assembly. Illinois Code 750 ILCS 36 – Uniform Child-Custody Jurisdiction and Enforcement Act
14
Internal Revenue Service. Publication 504 – Divorced or Separated Individuals