Parental Responsibility in Illinois and a Child's Parental Preference - Can They Choose?
Children are involved in parental responsibility and parenting time cases as little as possible. The Courts throughout Illinois believe that it is generally not in their best interests to be involved in litigation between their parents. Going to Court can be terrifying and/or intimidating for a minor child. Being asked specific questions by a Judge or an attorney regarding their preferences as to where they will live places the children directly into the middle of a conflict which is between their parents. The parents, often so entrenched in their positions, think that their children should be able to voice where they want to live or complaints that they have about a parent. In certain circumstances, they may be correct. However, this is generally the exception and not the rule.
At What Age Does My Child “Have a Say” Regarding Where They Want to Live?
Generally, in Illinois, the Courts will take a well-reasoned opinion of a minor child once they attain the age of thirteen (13) or so. However, this depends on the circumstances and the child’s maturity and reasons for their opinion on where they should reside.
For example, if a thirteen (13) year old child wants to live with mom because they have a better relationship, mom helps more with their homework and mom is home from work earlier than the other parent, those are well-reasoned reasons for wanting to move to mom’s home. If a fifteen (15) year old child says they want to live with mom because she is never home (and thus, it is “party central” at mom’s home) then this older child does not have a well-reasoned thought process as to why they want to live with mom. So, the age of the child is important, but so is the basis behind what they are saying and their maturity level.
The Court never has to absolutely listen to a child, though, while they are under the jurisdiction of the Court, even if the child has sound reasons for what they want. Despite sound reasoning, the Court will always render a decision that is in the child’s best interest.
How Can a Child Communicate Their Desire to the Court? Do They Testify?
Children are not easily welcome to testify in Illinois family courts. Generally speaking, a Child Representative or a Guardian Ad Litem may be appointed on behalf of the minor child (as the Court’s witness) to advocate or report on what they believe is in the minor child’s best interests or facts concerning the situation that the Court needs to know about. They often will interview the minor child(ren) and then can report back to the Court in the capacity of their role, either as a Guardian Ad Litem or a Child Representative.
If the Court Wants to Hear From the Child
In Illinois, if the Court does want to hear directly from a child, usually it will take place in the Judge’s chambers with only a court reporter and the Guardian ad Litem or Child Representative, and the parties’ respective attorneys, unless they agree to waive the attorneys being present. Usually, the transcript from the hearing is sealed so the parties and their attorneys cannot review it without a court order, if that’s the case, which brings up a slew of procedural and evidentiary conundrums for the attorneys. Regardless, if the Court is going to elicit information from a child in a family law matter, they do not want it done in a courtroom in front of the parent. The last thing the court wants is the child to feel pressure or fear that their parents will find out what they said and get angry, etc. Accordingly, Courts will often take these sorts of precautions when they want to hear directly from a minor child.
Jessica Marshall has a passion for helping people, with a true desire for solving their problems through the skillful application of the law. Jessica is a dedicated, intelligent, hard-working, and honest family law attorney who will fight for your rights with a dedication to her clients. She is a top-rated family law attorney at Anderson & Boback and a Superlawyer Rising Star for 2 years running.