In Illinois, we have abolished using the term “custody” and now refer to parenting time as the schedule which dictates where the child resides, and when. Clients often ask whether or not it matters if the child has an opinion as to where they reside, or how often they spend time with each parent, and the answer is complicated. Whether or not a child’s preference weighs in on parenting time and custody decisions depends on a variety of factors.
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Can a child choose which parent they want to live with?
No. It is not up to the child to choose who they reside with. However, their opinion can be considered in very specific circumstances once they have reached an age where they are mature enough to form a well-reasoned opinion about this. More on this below.
What pitfalls do I need to look out for when presenting information to the Court about my child’s preferences?
In Illinois, the Courts go out of their way not to place children in the middle of litigation and they tend to favor parents who do the same. So, if a parent goes running into Court saying that a minor child wants to live with them, depending on how it is represented, it could be a red flag to a Judge. Judges don’t want parents discussing litigation with the minor children and having information such as that a minor child heavily favors living with one parent over the other is not always going to be looked upon favorably. It is important to work with your attorney regarding how this information will be presented to the Court so that it is not used against you.
Are there any situations where the Court considers the child’s opinion?
That being said, there are certain situations when it might be appropriate for the Court to know where the children prefer to live. Older children, typically at the age of thirteen (13) or older, can often formulate a sound opinion regarding where they want to reside, depending on their maturity level. Courts generally won’t consider the child’s opinion prior to age thirteen (13). The other issue is that the Court will consider the reasoning behind the child’s opinion. For example, a thirteen (13) year old advises they want to live at Mom’s house because she works late into the evening and so they have friends over and can do what they want after school. That is not really a good reason. If they express they want to live with their Mom because she always helps them with their homework, lives closer to their school and they have their own bedroom at Mom’s house, those are more reasonable reasons to formulate the opinion of wanting to live at their Mom’s.
Will my child have to testify about their preference?
In a nutshell, possibly. When children are younger, the Court will often appoint a Guardian Ad Litem to speak on the child’s behalf. They are the Court’s expert witness and they can testify in hearings before the Court and express what the minor children have told them. This is the optimal way to make the children’s opinions known to the Court. Alternatively, older children could be asked to testify via an “in camera” conference. This conference would be a meeting with the Judge and the minor children and the Guardian Ad Litem/Child Representatives as well as counsel for the parents. The children testify but they are not doing so in the courtroom, before their parents. The contents of an in camera interview can also be sealed by the Court so that the parents cannot find out what was said, and the parties’ attorneys can be excluded by agreement so that they won’t know what the children said, to encourage the children to speak with candor. While this is considered testimony under oath, it isn’t in a courtroom before the parents. As a last resort, the Court could have the children testify in open court, but this generally does not happen.
