Can Children Express Preference in Illinois Custody Proceedings?

Learn when and how Illinois judges will consider a child’s wishes when making custody decisions.

By , Retired Judge

When parents are getting divorced or separating, the most challenging issues they face are usually related to physical and legal custody of their children—where the kids will live, how often each parent will see them, and how parents will make important decisions concerning their children.

When parents are in a custody battle, sometimes they overlook what the children themselves want, or—even worse—they try to manipulate or coerce a child into choosing sides. In order to prevent these problems, Illinois law requires judges to consider what the children want, but not necessarily to follow those preferences.

The Role of Children's Preferences in Custody Decisions

If the parents can't agree on a parenting plan, a judge will have to decide for them. In Illinois, as in all states, the overriding principle in all custody disputes is that the parenting plan must be in the child's best interests. But how do judges determine what's best for a child?

Illinois child custody laws address that question by requiring judges to consider certain factors. The child's preference is one of those factors—but only one. The judge will also take into account the parents' wishes, as well as a number of other specific circumstances in the case, including any history of domestic violence . (750 Ill. Comp. Stat. § 5/602.5(c) (2022).)

Do Children Have To Be a Certain Age to Express Custody Preferences?

Illinois law doesn't mention a specific age in its requirement that a child's custody preferences be considered. Rather, the law simply states that the judge should take into account the child's "maturity and ability to express reasoned and independent preferences." (750 Ill. Comp. Stat. § 5/602.5(c)(1) (2022).)

As a practical matter, the older the children are, the more weight judges are likely to give their opinion about the parent they want to live with most of the time, and how much they want to spend time with the other parent. For example, in one Illinois case, two sisters—one 14 and one 11—had different opinions as to which parent they should live with. The judge took each child's wishes into consideration but decided that their interests were best served by remaining together, ultimately giving greater weight to the 14-year old's wishes. (In re Marriage of Lovejoy, 404 N.E.2d 1092 (Ill. App. Ct. 1980).)

When Will Judges Follow Children's Custody Preferences?

The law in Illinois doesn't require judges to prioritize children's wishes—just to take them into account along with all the other relevant circumstances in a particular case. In weighing a child's preference, it's important for the judge to determine if children have thoughtful reasons for their opinions.

For example, if a child simply wants to live with the parent who's more lenient or gives more lavish gifts, the judge probably won't give that child's preference much weight. But if a child expresses a desire to live with the parent who's more loving or engaged in parenting (for instance, by regularly helping with homework or accompanying the child to sports and other activities), the judge is much more likely to take that child's wishes into consideration.

Do Children Have to Testify About Their Custodial Preferences in Court?

Illinois law doesn't require children to testify in open court regarding their custody preference. Judges want to spare children the anxiety of sitting in a witness chair in an intimidating courtroom and having to express a choice in front of their parents.

What normally happens is that the judge will interview the children in chambers. The parents' attorneys are permitted to be present, as is a court reporter to record the interview. (750 Ill. Comp. Stat. § 5/604.10(a) (2022).) Judges will typically keep questions to a minimum to make sure the child doesn't feel harassed or embarrassed.

It's fairly standard for a court to have trained professionals (typically psychologists or social workers) conduct a custody/parenting time evaluation, which will focus on what would be in the children's best interests. (750 Ill. Comp. Stat. § 5/604.10(b) (2022).)

In particularly contentious custody cases, the children may need to be represented by their own attorney. The judge may also appoint an attorney to serve as a guardian ad litem or "child representative" to represent the children's best interests. (750 Ill. Comp. Stat. § 5/506(a) (2022).)

When Can a Child Refuse Visitation in Illinois?

In Illinois, visitation falls under the general term "parenting time." Children aren't allowed to refuse to abide by an existing parenting time order in Illinois until they're legally considered an adult (18 or older), or they otherwise become legally emancipated.

A custodial parent may not shift the blame to the child for failing to obey a court's order regarding parenting time. If a child is refusing to comply with the order, the parent with primary physical custody ("custodial parent") has the responsibility to get the child to cooperate. Illinois courts have held that custodial parents may not disregard parenting time requirements merely because their children don't want to visit the other parent. (In re Marriage of Charous, 368 Ill. App. 3d 99 (Ill. App. Ct. 2006).)

Of course, any parent knows that as children get older, it can be increasingly difficult to make them do something they absolutely refuse to do. Judges recognize that existing parenting plans might become less appropriate as children age or the parents' circumstances change.

If your current parenting plan just isn't working anymore, you and the other parent could agree on a change, as long as the judge approves your agreement and incorporates it into a new court order.

Otherwise, you may file a "motion" (written request) with the court, seeking a custody or parenting time modification. You'll need to show that the modification is necessary because of changed circumstances. As with any aspect of child custody and parenting time, the judge must also find that the requested change is in the child's best interests before it will consider modifying the existing order. (750 Ill. Comp. Stat. § 5/610.5 (2022).)

How Can Mediation Help in Illinois Custody Disputes?

You may avoid lengthy and expensive court battles over custody disputes if you and the other parent can reach an agreement on the issue. When you're having trouble agreeing on your own, custody mediation may be a way to work through your obstacles. In fact, under most circumstances, Illinois law requires judges to order parents to participate in mediation to help them formulate, modify, or implement a parenting plan. (750 Ill. Comp. Stat. § 5/602.10(c) (2022).)

If you've worked out an agreement, ordinarily the mediator will prepare a written memorandum that reflects the terms of the settlement.

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