We often have people ask us if they can obtain custody because their child has expressed a desire to live with that parent. It seems logical that, at least by a certain age, a child should be able to decide who to live with it. However, the courts are reluctant to simply go by the child’s wishes.
Pursuant to the Illinois Marriage and Dissolution of Marriage Act, a parent that wants to modify custody must wait at least two years to do so unless there is an imminent risk of harm to the minor children. After two years, a party can petition for a modification of custody if there is a substantial change in circumstances. The party must also meet the best interests factors as set forth in 5/602 of the IMDMA, which include the following factors: (1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) 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; (4) the child’s adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; (9) whether one of the parents is a sex offender; and (10) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.
As you can see, while a child’s wishes are ONE factor, there are nine other factors that a court must consider. As such, if the other nine factors do not align with the child’s wishes, the judge may find that despite the child’s wishes, it is not in the best interests of that child to live with the other parent.
The problem arises when the child is a teenager who is very close to emancipating. The reality of the matter is that, at that age, a child may just “vote with his feet”. In other words, no matter what a court order may say, it would be pretty hard to keep a teenager from not residing where he or she wants to reside.
However, that is more of the exception than the rule. There is no defined age by which a child can decide where to live and that child’s desire alone is not enough to obtain custody. Furthermore, it is not uncommon to see a child change his or her mind mid-custody battle. As a result, if you are seeking a modification, you must have more than just your child’s wishes is you want to win.