Does a Child’s Preference Matter In Child Custody Decisions?

 

In Illinois, we have abolished using the term “custody” and now refer to parenting time as the schedule which dictates where the child resides, and when.  Clients often ask whether or not it matters if the child has an opinion as to where they reside, or how often they spend time with each parent, and the answer is complicated. Whether or not a child's preference weighs in on parenting time and custody decisions depends on a variety of factors.

Can a child choose which parent they want to live with?

No.  It is not up to the child to choose who they reside with.  However, their opinion can be considered in very specific circumstances once they have reached an age where they are mature enough to form a well-reasoned opinion about this.  More on this below.

What pitfalls do I need to look out for when presenting information to the Court about my child’s preferences?

In Illinois, the Courts go out of their way not to place children in the middle of litigation and they tend to favor parents who do the same.  So, if a parent goes running into Court saying that a minor child wants to live with them, depending on how it is represented, it could be a red flag to a Judge.  Judges don’t want parents discussing litigation with the minor children and having information such as that a minor child heavily favors living with one parent over the other is not always going to be looked upon favorably.  It is important to work with your attorney regarding how this information will be presented to the Court so that it is not used against you.

Are there any situations where the Court considers the child’s opinion?

That being said, there are certain situations when it might be appropriate for the Court to know where the children prefer to live.  Older children, typically at the age of thirteen (13) or older, can often formulate a sound opinion regarding where they want to reside, depending on their maturity level.  Courts generally won’t consider the child’s opinion prior to age thirteen (13).  The other issue is that the Court will consider the reasoning behind the child’s opinion.  For example, a thirteen (13) year old advises they want to live at Mom’s house because she works late into the evening and so they have friends over and can do what they want after school. That is not really a good reason.  If they express they want to live with their Mom because she always helps them with their homework, lives closer to their school and they have their own bedroom at Mom’s house, those are more reasonable reasons to formulate the opinion of wanting to live at their Mom’s.

Will my child have to testify about their preference?

In a nutshell, possibly.  When children are younger, the Court will often appoint a Guardian Ad Litem to speak on the child's behalf. They are the Court’s expert witness and they can testify in hearings before the Court and express what the minor children have told them.  This is the optimal way to make the children’s opinions known to the Court.  Alternatively, older children could be asked to testify via an "in camera" conference.  This conference would be a meeting with the Judge and the minor children and the Guardian Ad Litem/Child Representatives as well as counsel for the parents.  The children testify but they are not doing so in the courtroom, before their parents.  The contents of an in camera interview can also be sealed by the Court so that the parents cannot find out what was said, and the parties’ attorneys can be excluded by agreement so that they won’t know what the children said, to encourage the children to speak with candor.  While this is considered testimony under oath, it isn’t in a courtroom before the parents.  As a last resort, the Court could have the children testify in open court, but this generally does not happen.

THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/does-a-childs-preference-matter-in-child-custody-decisions/

Comments

Post a Comment

Popular posts from this blog

When Divorced Parents Disagree About the COVID-19 Vaccine 

Image
  There is a lot of disagreement about vaccinations for children and the argument between parents with differing views on this subject is not a new one.  Illinois family law attorneys representing parents in this type of disagreement have worked throughout the years to avoid the problem in its entirety by addressing the issue of vaccination in the parenting agreement, now called an Allocation Judgment.  A prior agreement on how to handle vaccinations will give clarity as parents deal with the COVID-19 vaccine.   COVID-19 Vaccine Questions from Divorced Parents There are a number of questions and co-parenting issues surrounding the COVID-19 vaccine. Here are five of the most frequently asked questions we are seeing in our Chicago family law practice: 1. What If the Other Parent Will Not Get the COVID-19 Vaccine? We just saw a judge in Cook County strip a mother of her parenting time because she had not received the COVID-19 vaccine.  The parents were before the court on a child support
Read more

Contempt For Not Following A Parenting Plan

Image
  Is Your Ex Not Allowing Parenting Time with Your Child? If your ex is not allowing parenting time your child, can you hold them in contempt ? The short answer is yes.  Everything in the field of family law often draws a response from the lawyer which sounds like “ it depends. ”  The reason for the “it depends” relates to the parenting order itself and whether clarity exists.  One cannot be held in contempt if there is not a clear order lacking ambiguity. There was a time in court that we would enter orders that would allow the parents to set the schedule themselves.  Something like “Mary and Jack shall facilitate parenting time in the best needs of the child.”  Well, what exactly did that mean?  And if Mary thinks it is in the best interests of the child to see Jack once a week (or less) and Jack thinks he should see his daughter every day, then clearly, we have a problem.  Every one of these cases came back into court to have the judge decide what was in the child’s best interest re
Read more

Illinois Law Update – Can a Guardian Ad Litem Speak to a Therapist in My Case?

Image
The Illinois Marriage and Dissolution of Marriage Act in recent years gave the courts in Illinois the authority to order therapy for a minor child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties if it finds that the parents or all parties agree, that the child’s physical health is endangered or that the child’s emotional development is impaired, or that an abuse of allocated parenting time has occurred, or, one or both of the parties violated the judgment with regard to conduct affecting or in the presence of the minor child.  {See 750 ILCS 5/607.6 regarding same}.  However, the same statute previously explicitly indicated that all therapy would be confidential. As of August 13, 2021, Illinois enacted Public Act 102-349, and the statute is now modified.  It no longer has a provision stating that therapy would be strictly confidential.  This kept all information obtained by a Guardian Ad Litem from a therapist out o
Read more