Children are, indeed, a part of a family and their voices can be used to influence the eventual structure of that family after the divorce.
In Illinois, parents, children and the court system in general are loathe to involve children to the point where they provide testimony. This is generally acknowledged as traumatizing at worst and superfluous at best.
If a child’s testimony is needed, the courts typically try to find alternatives to that testimony in open court. Testimony is just in front of a judge. There are no juries in Illinois domestic relations courts. “The court, without a jury, shall determine questions of law and fact.” 750 ILCS 606.5(b). So, you won’t be dealing with 12 strangers evaluating your children or yourself.
The most extreme alternative to testimony is “hearsay” or an adult saying, “the child told me that this was their experience” or “The child told me their wishes.”
In almost all other courts in Illinois, hearsay is strictly forbidden as something for the courts to consider. This exception is only made for the benefit of the best interests of the children.
In Illinois domestic courts, hearsay of a child is only allowed in situations where there have been allegations of abuse. Specifically, the law states. “Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning allocation of parental responsibilities in accordance with Section 11.1 of the Abused and Neglected Child Reporting Act. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” 750 ILCS 606.5(c).
The language “abused or neglected minor” allows a parent to invoke this hearsay rule in almost any dispute regarding parenting time and parenting responsibilities.
Courts have expressly allowed this hearsay standard stating that it was applicable to situations when a parent is accused of abuse and matters of visitation and, by extension, custody are at issue. Daria W. v. Bradley W., 317 Ill. App. 3d 199 (2000).
In such an instance, a child’s hearsay can be admitted or told to the judge without putting the child on the stand in a public hearing. There must be some kind of corroboration to allow this, however, the child’s word alone is not enough. This corroboration may be a police report, a therapist’s testimony, or the results of a medical exam for example.
If we cannot meet this hearsay standard, the courts may require that the child testify in a non-public hearing.
“If the court finds that a public hearing may be detrimental to the child’s best interests, the court shall exclude the public from the hearing, but the court may admit any person having:
(1) a direct and legitimate interest in the case; or
(2) a legitimate educational or research interest in the work of the court, but only with the permission of both parties and subject to court approval.” 750 ILCS 606.5(d)
It is obvious to see that this standard, “the child’s best interests,” would allow virtually every child to testify in a private hearing. But, this merely means that everyone except the parents would be removed from the court room.
More typically, an Illinois domestic relations court will rely on its power to interview the child In Camera which is a fancy latin term for in chambers, which again, is an overly complicated term for “the judge’s office.”
“The court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The entire interview shall be recorded by a court reporter. The transcript of the interview shall be filed under seal and released only upon order of the court.” 750 ILCS 604.10(a)
In my experience, this interview is usually conducted with older children who are adequately able to express their wishes to the judge. The judge is typically appropriately casual and respectful of the children’s feelings during these interviews. While the lawyers for both sides are present, they rarely say anything at all.
In lieu of bringing the children to court at all, the court may appoint an evaluator to investigate the situation, interview the child and report back to the court. The evaluator must be “a professional” but the statute does not define what a “professional” is exactly. Typically, it’s a family therapist or an agency specializing in this exact activity. The court can appoint this evaluator or either party can petition for an evaluator (obviously of their choosing)
Pursuant to 750 ILCS 602.10(b) and (c), the evaluator will then issue the court a report which must include:
- A description of the procedures employed during the evaluation;
- a report of the data collected;
- all test results;
- any conclusions of the evaluator relating to the allocation of parental responsibilities under Sections 602.5 and 602.7;
- any recommendation of the evaluator concerning the allocation of parental responsibilities or the child’s relocation; and
- an explanation of any limitation in the evaluation or any reservations of the evaluator regarding the resulting recommendations.