Can I win custody of my child solely because this is what the child wants?

muslim-parents-hugging-child-southeast-asian-malay-family-lifestyle-happy-smiling-father-mother-daughter-31735634Although the court considers the child’s wishes, the short answer is no.

The court must consider the preferences of the child in awarding custody but is not bound by that preference. The weight given to the child’s stated desire will be affected by the child’s age, reasoning, and other demonstrated maturity. In Savre v. Savre, 61 Ill.App.3d 11, 377 N.E.2d 850, 852, 18 Ill.Dec. 365 (3d Dist. 1978), the court stated the above factors as follows:

While a child’s preference is an important factor in determining matters of custody, the weight it is to be given may vary depending on such things as the age, maturity, and education of the child. The ultimate decision must be resolved not only by reference to the preference of the child, but also with due regard to the facts peculiar to the case at hand.

The court in In re Marriage of Kush, 106 Ill.App.3d 233, 435 N.E.2d 921, 923, 62 Ill.Dec. 123 (3d Dist. 1982), stated that “preferences of young children, though entitled to consideration, are not binding upon the court.”

In Zucco v. Garrett, 150 Ill.App.3d 146, 501 N.E.2d 875, 103 Ill.Dec. 558 (5th Dist. 1986), the appellate court reviewed the records, found that the six-year-old had not truly expressed a preference for either parent, and thus reversed the trial court for relying on the child’s alleged preference.

In Jines v. Jines, 63 Ill.App.3d 564, 380 N.E.2d 440, 444, 20 Ill.Dec. 462 (5th Dist. 1978), the court stated: “Such a preference, especially that of a 14-year-old child, should be given serious consideration by the court particularly where the child’s desire is based upon reasons related to her best interests.”

In In re Marriage of Lovejoy, 84 Ill.App.3d 53, 404 N.E.2d 1092, 1094, 39 Ill.Dec. 501 (3d Dist. 1980), the court responded to the differing desires of the children, ages 14 and 11, as follows: “The Act requires that the court consider the wishes of the children. When these wishes conflict, the court does not abuse its discretion in giving greater weight to the desires of the older and more mature child.”

The main point is that although the child may wish to live with one parent over the other, there are often ulterior motives for this. Sometimes the children will say that they want to live with the other parent because they know they are less chores to do, that they will get more of an allowance or that they wont have to live by strict standards. Therefore, the court does consider the child’s wishes, but this is not the only factor.

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