For: Illinois Judges Association / Illinois State Bar Association

Contact: Chris Ruys (312) 337-7746

November 2005

Child custody is one of the biggest challenges divorcing parents face. In addition to dealing with their own anguish over the dissolution of the marriage, parents must cope with the impact on their children and the even greater challenge dealing with parenting issues, including custody.

Understanding how the legal system and courts work can help ease the pain for all involved, according to the presidents of the Illinois Judges Association (IJA) and the Illinois State Bar Association (ISBA)

Judge James M. Wexstten, of Mount Vernon, a judge in the 2nd Judicial Circuit and president of the IJA, has spent his entire career helping abused and neglected children. He is the founder of the steering committee which established the Southern Thirty Adolescent Center, an emergency shelter for abused and neglected children, and is a past president and past member of the board of directors of Prevent Child Abuse Illinois.

ISBA President Robert K. Downs, a Chicago attorney who has practiced family law for 25 years with his wife and law partner Barbara, estimates he has represented more than 4,000 families in divorce and child custody matters.

Both agree that the primary consideration for all involved should be based on the "best interests of the child," but Downs says that "trying to get there can be a very difficult task."

Judge Wexstten, who hears divorce and custody cases, states: "According to the Illinois Marriage and Dissolution Act, the courts must decide custody matters based on 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."

"It is a misconception that children get to pick which parent they will live with," he continues. "While the ‘wishes of the child' are a factor in the decision, we do not burden children with the final decision. Many times, courts rely on outside resources, such as clinical social workers, psychologists and other professionals to make recommendations regarding custody and visitation."

While a judge's job is to apply and interpret the law, the attorney's role is to represent the client to the best of his or her ability.

"Family law presents the greatest challenge to our judicial system," Judge Wexstten states. "No other field of law involves the emotional struggle of parents and children in a setting which has such a potential to do long-term harm."

During his years in private practice, Downs has observed that divorcing parents frequently try to "win" custody by proving they are the best parent. "The real secret to success in custody cases is to approach the case from the child's point of view; that is, which parent will best address the child's needs," he states.

Judge Wexstten and Downs note other factors with regards to custody and visitation:

• Only judges, not juries, handle divorce and family disputes. Furthermore, the judge is not an advisor but a decision-maker who often helps resolve custody matters through settlement conferences and mediation.
• In certain instances, the judge may appoint a licensed attorney as a type of guardian in the courtroom to represent the child's interests.
• Joint custody doesn't necessarily mean that the children physically spend equal time with each parent. Joint custody refers more often to sharing parenting responsibility and participation, not just parenting time.
• Unrestricted visitation is the rule, not the exception. Only when the child would be put at risk by a non-custodial parent's behavior would visitation be restricted or supervised.
• The non-custodial parent sometimes spends alternate weekends and a midweek evening, split holidays and vacation time with the children. Extracurricular activities of the children cannot be a reason to prevent visitation but certainly should be given consideration by the parents.

"Responsible, caring parents should take into account the developmental and changing needs of their children and support them in their enjoyment of meaningful activities," says Judge Wexstten.

Downs says that the ISBA and IJA are taking steps to elevate the court's role in family law, as well as overall professionalism issues. There are multiple ISBA task forces in place, which are drafting new legislation in the areas of custody, parentage, child support, professionalism and other issues, he says.

The Illinois Judges Association provides continuing legal education to its members as well as education to the public on matters related to the justice system. The 30,000-member Illinois State Bar Association, with offices in Springfield and Chicago, provides professional services to lawyers, and education and services to the public.

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