Can Father’s Obtain Custody of Children in Illinois Divorce Cases?

This has to be one of the most frequently asked questions. The answer to the question is both simple and complicated at the same time.

Illinois is a gender neutral state when it comes to divorce. The statute gives no preference for child custody in Illinois divorce or parentage cases to either the mother or the father. So, the first answer to the question is yes- a father in an Illinois divorce or parentage case has as much of a chance of obtaining custody as the mother. Simply because a father can obtain custody of children in a divorce does not, however, mean that he will.

And that is where the second part – the more complicated part – of the answer comes in. While the law is gender neutral, the law is applied by judges and interpreted by attorneys. In addition, in a hotly contested child custody case, it is more likely than not that one or more experts will be involved. Each of these individuals has his or her own personal bias that will affect his or her view of each parent’s role in a child’s life. The bias and discrimination is difficult to detect and frequently couched in a manner that makes it difficult or impossible to really identify clearly. In fact, I am convinced that while such biases exist, those applying the bias may not even realize they are doing so.

The examples, however, are present. At the trial level, Guardians Ad Litem and custody evaluators are more likely to recommend custody to the mother unless there is some clear reason the mother should not have custody. Even when there is mental illness or substance abuse issues, if the mother addresses the issue in a serious manner most experts and judges will concentrate on the present recuperation in maintaining custody or awarding custody to the mother. Father’s with a similar history are more likely to be fighting against supervised visitation.

Biases have existed forever and will continue to exist. The exact shape and effect will change over time. While the law can be changed rapidly, as has happened with gender roles in our society, it takes significantly longer for those in the system to come around to the new way of thinking. I believe this is especially so with the legal system which, though relatively progressive, is thoroughly steeped in tradition.