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| Home > Divorce Q&A's: (sect-Custody, Visitation, & Removal) > How to Find a Custody Lawyer | |||||
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Custody in Illinois Divorce Cases and How to Find a Custody LawyerThe Gitlin
Law Firm, P.C., Woodstock, Illinois © 2008
Q:How do I find a good Illinois custody lawyer? Are there certain qualifications that I should look for to find a custody lawyer to best represent my interest and that of my children?A:I believe the marks of a good custody lawyer are generally the same as a good family lawyer or divorce lawyer. One qualifications to look for in Illinois is to determine if the lawyer has been selected as a Member of the Leading Lawyer Network in the area of family law -- which is those lawyers who have been elected by their peers as being top lawyers in their fields. A similar organization is Illinois Super Lawyers. However, merely inclusion on such a list does not guaranty that the lawyer may be best for an individual's case. Also, keep in mind that the Supreme Court of Illinois does not recognize certifications of specialties in the practice of law and that any certificate, award or recognition is not a requirement to practice law in Illinois. I believe that one of the key questions in hiring a lawyer in any cases where custody may be at issue is whether the lawyer and client may be "on the same page." Additionally, I believe a good custody lawyer knows how best to avoid trial, if this is possible. The reason is simply the cost of a custody trial, discussed below. However, if settlement is not possible, and the representation is "traditional adversarial representation" rather than collaborative representation, the lawyer must have the ability to try a custody case.
Q:I have heard it is extremely difficult for fathers to be awarded custody in Illinois. Is this true?A:There have been studies as to fathers' chances for success in contested custody cases. In one study, involving cases which were not contested, mothers received custody in approximately 90% of the cases. In those cases that were contested, fathers won custody in approximately 60% of the cases. However, overall, the percentage of cases in which mothers received custody was greater than 88% of the cases.
Q:What do these statistics mean to you?A:The statistics to me probably mean that many lawyers under-estimate the number of times that a father can win custody. However, the statistics also indicate that there are relatively few cases in which fathers go through a contested trial to fight for custody. My theory is that generally fathers fight for custody in cases where they have a decent chance at obtaining custody. For this reason, the statistics are not as skewed as I would have anticipated in terms of contested trials.
Q:An order of protection was entered against me. Is this a negative in terms of whether I can obtain custody?A:Yes, but only assuming that the order of protection was not merely an “emergency” order of protection. In Illinois, if an order of protection is entered as a result of a contested hearing, it will likely be a significant negative in terms of the court's ability to award joint custody in the sense of joint decision making as well as an award of primary residential custody. It is a significant negative in terms of joint custody because the law provides that the court should presume that the maximum involvement and cooperation of both parents as to issues affecting the children are in the best interest of the children. However, this presumption is thrown away if there has been domestic violence. It is also a negative in terms of sole custody because one of the factors in determining the children's best interest is the physical violence or the threat of physical violence by a child's potential custodian (even if that violence is not directed toward the child.)
Q:But doesn't the law then give a party (generally the woman) an incentive to make up false allegations of abuse?A:Yes it does. However, in the counties in which I practice, including McHenry County, Lake County, etc., I have found that judges are becoming more and more aware of the potential for the “abuse” of the domestic violence laws. Therefore, many judges refuse to enter orders of protection when the facts are weak. Additionally, false allegations of abuse can be a negative for a parent in obtaining custody. One of the critical factors in determining a child's best interest in custody proceedings is the ability and willingness of each parent to facilitate a close and continuing relationship with the other parent. False allegations of abuse do not paint a picture of someone who is trying her best to facilitate a close relationship with the child and the other parent.
Q:How costly is a custody battle?A:Custody cases are quite expensive. A line that I learned while at Gitlin & Gitlin was that the cost of a custody case is approximately the same as a new car. The fact is that this does not quite answer the question. In the mainstream, there are new cars which cost $20,000 and there are new cars which cost significantly more than $50,000. Each case in which custody is tried is unique. Therefore, it is not possible to predict total costs of litigation with pin-point accuracy. My belief is that many potential custody cases which might be contested are settled because the parties realize that such proceedings are often a luxury which cannot be afforded.
Q:If I can't afford a custody battle, are there steps I can take in seeking custody without trying the case outright?A:Yes. If there is an issue as to custody, the court will refer the parties to mediation -- with certain very narrow exceptions such as cases of domestic violence (when the case is often deemed to be "ineligible" for mediation. Click here to the Gitlin Law Firm's Q&A regarding mediation of custody cases in Illinois. In McHenry County, generally, even temporary proceedings as to custody and visitation are put on hold while mediation is pending. If mediation is not successful, the next step generally is for the appointment of a custody evaluator. While the appointment of a custody evaluator is not required if there is a contested custody trial, it is the norm. There are several types of custody evaluations and your lawyer should address the pros and cons of each type if you will be involved in a custody evaluation. Your lawyer should also be able to discuss the pros and cons of the evaluator who will be selected. Just like divorce lawyers, there are evaluators who are better qualified than others.
Q:Where can I find Illinois law that applies to child custody proceedings?A:The law is in the Illinois Marriage and Dissolution of Marriage Act, Part VI.
Q:What about joint custody? Is joint custody worth the fight?A:Please see my Q&A which discusses joint custody.
Q:What role does infidelity have on custody determinations.A:The statutory law in Illinois states that the court in custody determinations the court shall, "not consider conduct of a present or proposed custodian that does not affect his relationship to the child." This is similar to the law in most states. However, a recent study indicated that infidelity did play a significant role in sole custody determinations. See American Journal of Family Law, Vol. 19, No. 1, p. 38, "Determinants of Sole and Joint Custody Arrangements in a National Sample of Divorce Cases."
Q:I have heard about collaborative law. Is it true that in collaborative divorce cases there are more awards of joint (legal) custody?A:Yes. The reason for this, however, is likely due to the fact that the parties engaged in collaborative practice are more cooperative than in a traditional divorce setting. For example, a rule of thumb used by some judges is that if a custody case is tried that generally there will be an award of sole custody to one parent or to the other parent (that is, unless it can be seen that the parties have demonstrated an ability to communicate and cooperated in matters effecting the child(ren). Moreover, a joint parenting agreement does not mean that physical custody is to be shared. See the Gitlin Law Firm's Q&A regarding joint custody and regarding collaborative divorce and collaborative law in Illinois.
Q:How long does it take for a custody case to be resolved by the court?A:Before July 1, 2006, it was difficult to provide an answer. Effective on that date, the answer is supposed to be within 18 months of the date that the divorce petition was served. However, this date can be excused for "good cause shown." See the Gitlin Law Firm's discussion regarding the effect of these Supreme Court Custody Rules. While 18 months seems like a long time, keep in mind that this time frame starts to be measured from the service of the divorce papers. In most cases a couple going through a divorce does not know immediately whether or not custody will be tried. Additionally, keep in mind that one of the required initial steps according to the Supreme Court Rules is mediation.
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law Firm's practice is generally limited to McHenry County, Lake County, Kane County and Boone County, Illinois. The Gitlin Law
Firm, P.C. www.gitlinlawfirm.com
Updated: January 1, 2008 |
 
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