Under either sole custody or joint custody, the non-residential parent is required to pay child support to the residential parent. The right to visitation and the right to child support are not connected. Child custody can be the most difficult and emotional issue arising during a divorce or post-divorce proceeding. Danelle Wozniak works with clients to achieve the most successful child custody solution possible.

Child Support & Visitation

“The Illinois Marriage and Dissolution of Marriage Act, which is incorporated in the Parentage Act, sets forth guidelines for child support.”

- Attorney Danelle Wozniak

In Illinois there are two types of custody, sole custody and joint custody.

In sole custody, the child resides with the custodial parent and that parent has the authority to make all decisions affecting the child including the child’s educational and religious upbringing as well as medical care. The non-custodial parent has no decision making authority for major decisions, but only day to day decisions while the child is in his or her care.

Under joint custody, the child generally resides with only one of the parents, known as the residential parent; however, both parents have joint decision making power for major decisions. Illinois requires that the parties have a written parenting agreement which provides the basis and touchstone for the parenting of the child. For joint custody to be successful, both parents must be able to put aside their differences and work together as parents for the best interests of the child. This requires an ability to communicate effectively in order to discuss and agree upon on all major issues affecting the child. In the event the parents are unable to come to agreement, generally, Joint Parenting Agreements must contain a provision for mediation prior to court intervention. Mediation involves a certified mediator that meets with the parents to attempt to discuss and work out the issue that is affecting the child that the parents cannot agree on.

In most situations, whether sole or joint custody, the non-residential parent is required to pay child support to the residential parent. In either case, the non-residential parent’s visitation or parenting time is not determined by whether there is a sole or joint custody situation. The amount and frequency of visitation or parenting time is based on what is in the child’s best interests.

When the parents cannot agree on a custody arrangement, the court is required to award custody to a parent based upon the best interests of the child. Under the Illinois Marriage and Dissolution of Marriage Act, the court is required to consider the following factors when determining what is in the child’s best interests:

• The wishes of the child’s parents as to his or her custody.
• The wishes of the child as to his or her custodian (if the circumstances are appropriate).
• The interaction and interrelationship of the child with his or her parent or parents, his or her siblings and any other person who may significantly affect the child’s best interests.
• The child’s adjustment to his home, school and community.
• The mental and physical health of all individuals involved.
• The physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person.
• The occurrence of ongoing abuse as defined by the Illinois Domestic Violence Act whether directed against the child or directed against another person.
• The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other spouse and the child.
• Whether either party is a sex offender.

Guardian ad Litem

Sometimes in order to assist the court in examining these factors to determine the best interests of the child, the court will appoint a Guardian ad Litem for the minor child. This is usually a licensed attorney who has qualified to become a Guardian ad Litem through county certifications and works as the eyes and ears for the court. The Guardian ad Litem investigates the child’s family, parents, and those who have regular contact with the child and are involved in his or her life. The Guardian ad Litem evaluates the child’s situation and will make recommendations to the court regarding issues such as custody, visitation and removal from the State, if that is at issue. In most cases, the Court will order both parents to equally share the cost of the Guardian ad Litem. However, depending on the income situations of the parties and circumstances of the custody litigation, the Court can assign a lesser or greater share of the expense to one of the parties.

Child support is designed as a way for a parent who does not have the child living with him or her to help financially support that child as though the parties had been married and pooling their incomes together to raise that child. Child support obligations are based on an obligor’s net income from all sources. As far paychecks are concerned, it is the income you earn after taxes, union dues and allowable deductions are taken. This does not include 401k contributions which you may have directly withheld from your paycheck. Below is a breakdown of the percentage of an obligor’s income that would be paid for child support based on the Illinois guidelines for child support:

• 1 child - 20%
• 2 children – 28%
• 3 children – 32%
• 4 children – 40%
• 5 children – 45%
• 6 or more children – 50%