Can Children Express Preference in Illinois Custody Proceedings?

Looking at child’s custodial preference and its impact on custody in Illinois.

When children speak up about their parental preference, a judge will usually listen. In most states, a judge is required to at least consider a child’s wishes regarding custody.

Judges have discretion as to how much weight to give a child’s preference depending on the child’s age and maturity. Legal protections exist to prevent a parent from pressuring a child to express a certain preference. Ultimately, the goal of any custody proceeding is to create a living arrangement that serves the child's best interests.

This article provides an overview of the impact of a child’s preference on custody proceedings in Illinois. If you have questions after reading this article, please contact a local family law attorney for advice.

Child Custody Basics in Illinois

Custody is relatively simple when parents can agree on living arrangements and visitation schedules for their children. However, in many cases, a judge will need to intervene and create a custody schedule when parents can’t agree.

A judge will consider several factors in reaching a custody decision, including:

  • each parent’s desire for custody
  • the child’s wishes regarding custody
  • the child’s relationship with each parent
  • the child’s relationship with siblings
  • the child’s involvement in school and community
  • the circumstances of the child’s home life
  • each parent’s physical and mental health
  • the child’s physical and mental health
  • any history of domestic violence by either parent, even if the violence was not directed at the child
  • each parent’s ability and willingness to encourage a relationship between the child and other parent, and
  • any other factor the court deems relevant.

To learn more about custody decisions in Illinois, see  Child Custody in Illinois: The Best Interests of the Child.

A judge will also examine any other circumstances affecting the child's well-being or safety. Except in cases of ongoing abuse, a court must give both parents the opportunity for maximum involvement in their child’s life. In the case of siblings, each child’s needs are considered individually. In some cases, this may mean that siblings are separated because custody is awarded to different parents.

When Does the Court Consider a Child’s Preference?

In Illinois, courts always consider a child’s custodial preference. Nevertheless, a judge won’t give a child’s parental preference much weight until that child is mature and able to reason on his or her own. There isn’t a magic age when a child’s wishes might change the outcome of a custody case. Instead, a judge will evaluate a child’s maturity on a case-by-case basis.

For example, in one Illinois case, a 14 year-old’s preference for her father was given serious consideration because she was excelling in school and wanted to remain in that school rather than move to Minnesota with her mother. Ultimately, the court decided that the child’s desire to remain with her father was in her own best interests.

In some cases, someone other than the parent may be awarded custody based on a child’s preference. One 16 year-old was allowed to live with her adult sister rather than move to Mississippi with her parents, because she was able to rationalize to the court why she had that preference. Alternatively, the younger three siblings, ages 13, 11 and 7 in the same case expressed a similar desire to remain with the older sister, but their wishes weren't given much weight because of their young ages and emotional immaturity. Ultimately, the court decided that the younger children’s best interests would be better served by remaining with their parents.

Judges are careful when using a child's testimony because some parents may try to manipulate the child in order to gain an advantage in a custody proceeding. Professionals, like judges and therapists, are trained to look for signs that a child is being coerced to testify a certain way. Thus, a child’s age and ability to make independent decisions are critical when deciding how much weight to give a child’s wishes.

Will My Child Have to Testify in Open Court?

Typically, children don’t have to testify in court to make their custody wishes known.  Court hearings and trials are particularly stressful for children. In an effort to protect children from the negative impacts of custody disputes and stresses related to testifying, judges try to avoid putting children on the witness stand (except in emergencies). Nevertheless, courts must find a way to consider children’s wishes in every custody case in Illinois.

Often, a judge will appoint a licensed professional to meet with a child and discern his or her parental inclination. Generally, the licensed social worker, therapist, or a guardian ad litem  (agent or attorney representing the child) will meet with the child and the parents individually, outside of court. These professionals are appointed to serve a child’s interests and relay those interests and needs to a judge.

Alternatively, a judge can speak directly with the child during an interview in the judge’s chambers. The judge will ask the child questions in the presence of each parent’s attorney. A court reporter will attend the in-chambers interview to prepare an accurate transcription of everything that is said. The recorded transcript, instead of a child’s live testimony, may be used during custody hearings or trial.

If you have additional questions about a child's custodial preference in Illinois,  contact a local family law attorney for advice

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