The Child’s Preference in a Custody Dispute

http://www.dreamstime.com/royalty-free-stock-photo-family-chasing-dog-image25041735Parents often believe that the children get to decide which parent they will primarily live with living arrangements are in dispute. It is true, that under the law, some weight may be given to the child’s preference, but it is not true that the child will absolutely determine where he or she will live.

In Illinois, custody and parenting time is determined in accordance with the child’s “best interest.” The court determines the best interest by examining a number of relevant factors which may include the child’s preference.

The Court is more inclined to consider the child’s preference as one of the factors if the preference is based on “sound reasoning.”  See In Re Marriage of Shoff v. Shoff, 79 Ill.App.3d 178 (1989). Courts must be on the lookout for situations where the child prefers one parent because the parent lets the child stay up late and skip homework or situations where the child has been influenced by the parent to make statements favoring one parent.

Courts have held that “sound reasoning” for preferring custody with one parent over the other can include having a stronger attachment with one parent that cannot be so easily expressed. See In Re Marriage of Wycoff, 266 Ill.App.3d 408, 414 (4th Dist. 1994).

Before even considering asking a child his or her preference, mental health professionals will strongly caution parents against involving the child so closely in a custody dispute. As mentioned above, a child’s preference is just one of many factors considered in determining the “best interest”. Seeking the child’s preference may only cause the child unnecessary distress.

 

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