Do Illinois Courts Consider a Child’s Wishes in Custody Decisions?

 Posted on October 28,2022 in Child Custody & Allocation of Parental Responsibility

Part of our job as parents is teaching our children how to be independent. This includes encouraging them so they are ensured their voices are heard and that their opinions and feelings matter. This process is an ongoing one and there are times when parents do need to overrule what their child wants because it is not in their best interest. One question that parents going through a child custody case often ask is whether or not the court will take into consideration the child’s wishes. Although in many cases the judge will consider the child’s wishes, it will not be the deciding factor.

Allocation of Parental Responsibilities and Parenting Time

In 2016, there was a major overhaul to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Lawmakers eliminated the phrase “child custody,” replacing it with the allocation of parental responsibilities and parenting time. What did not change is how family court judges decide the allocation and parenting time, basing those decisions on the best interest of the child doctrine.

When it comes to whether or not the child’s wishes have any sway in the court’s decision, that often depends on the age of the child. Under the statute, the court will take into consideration the child’s “maturity and ability to express a reasoned and independent preference.” While this usually refers to older children, it can also apply to a younger child who is especially articulate and mature for their age and is able to clearly express their wishes in a manner that assures the court they are not just repeating what they have overheard or been told what to say by one of the parents.

How Are the Child’s Wishes Expressed to the Court?

In order for the court to consider a child’s wishes, it must hear from the child directly. A judge cannot rely on what one parent says the child has shared with them. This would fall under the hearsay doctrine, which in most cases is inadmissible.

But sitting in a witness chair and testifying about which parent they want to live with in open court can be intimidating – if not frightening – to a child who is likely already struggling with emotional issues regarding their parents’ divorce and the breakup of their family.

Instead, the child will share their testimony in the judge’s chambers, without their parents or attorneys present. This intimate setting is much less overwhelming and allows the child to freely express their feelings without fear of repercussions from either parent.

Contact a Kane County Family Law Attorney for Legal Assistance

If you are involved in a custody battle, make sure you have a skilled St. Charles, IL allocation of parental responsibilities lawyer advocating for you. Call Weiler & Associates, Inc. at 630-331-9110 to schedule a confidential consultation and find out what type of legal options you may have.

Source: 

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000