A Child’s Preference And Parenting Time In An Illinois Divorce

Parents always want to know when their child can choose which parent they want to live with. There is no specific age or date when a child’s opinion becomes determinative of that child’s parenting time (formerly known as custody). In the end, it is a decision for the parents to agree upon or for an Illinois divorce court to decide based on the evidence presented.

“The trial court’s decision to choose a custodial parent when both parents are fit and capable is always difficult.” In re Marriage of Seymour, 206 Ill. App. 3d 506, 514 (Ill. App. Ct. 1990)

Merely one of the factors which the court may consider in determining custody in accordance with the best interest of the child is “the wishes of the child as to his custodian.” 750 ILCS 5/602(a)(2)

“Nevertheless, there are problems with making the decision of the child the determinant. For one thing, such an approach places a tremendous amount of pressure on the child.” In re Marriage of Hefer, 282 Ill. App. 3d 73, 76 (Ill. App. Ct. 1996)

“[I]t is seldom in a child’s interest to be asked to choose between his parents or to believe that his expression of preference will influence the judge’s decision. Children often lack the maturity to make a wise choice. And choosing tends to create feelings of disloyalty toward one parent which can be quite devastating for the child as well as for the mother or father whom he ‘rejects.’ Indeed, this is why the law requires that the custody decision in the end be made by adults.” S. Goldstein A. Solnit, Divorce Your Child 67 (1984).

For this reason, courts rarely ask a child their preference directly. When a court does ask a child directly for their preferred custodial parent, the court certainly does not put the child on the stand to testify. Rather, the court has a private recorded conversation with the child in the judge’s chambers.

A “trial court d[oes] not err in failing to specifically ask [the child] whether [they] preferred to live with [their] father or [their] mother.” In re Marriage of Balzell, 207 Ill. App. 3d 310, 314 (Ill. App. Ct. 1991)

Courts instead prefer to use Guardian Ad Litems (GALs)  to get an accurate view of the child’s opinion of the future of their own custody. “A GAL acts under the control and direction of the court as the child’s representative. A GAL is the “eyes and ears” of the court. In our view it is proper for the GAL to make the child’s preference known to the court, and the court should have given some weight to the GAL’s recommendation here. Another way to get a child’s preference before the court is through the admission of hearsay statements made by the child.” In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415-16 (Ill. App. Ct. 1994)

Without a GALs investigation and report, parents are going to go to extreme’s to influence their child’s “official” preference.

For example, In Re Marriage of Seymour had muddy evidentiary waters because “[t]he trial court further found that both parties had tried to influence Jana’s choice by buying ice cream and enlisting and involving the children in the various disputes. Each party complained that the other party had attempted to undermine the other’s discipline and authority.” In re Marriage of Seymour, 206 Ill. App. 3d 506, 513 (Ill. App. Ct. 1990)

There are many factors for the court to consider beyond the child’s preference. A court’s reliance on a child’s preference “provides an incentive for parental manipulation and intimidation of the child, and an opportunity for the child’s manipulation of the parents, none of which can be said to be in the best interest of the child.” In re Marriage of Hefer, 282 Ill. App. 3d 73, 77 (Ill. App. Ct. 1996)

The maturity of a child can hopefully let the court know if the child’s wishes are grounded in reason or are the result of manipulation and/or childish foolishness.

“[750 ILCS 5/602(a)’s consideration of “the wishes of the child as to his custodian”] has been construed to require that a mature child’s preference as to custody be given considerable weight when it is based on sound reasoning.” In re Marriage of Leff, 148 Ill. App. 3d 792, 810 (Ill. App. Ct. 1986)

“The preferences of a child, especially one who is mature, are to be given serious weight in custody decisions, especially where the child’s desire is based upon reasons related to his best interests such as a desire to remain with friends; to continue attending the same school; and to remain in the same environment.” In re Marriage of Siegel, 123 Ill. App. 3d 710, 718 (1984)

Children’s opinions are important, but Illinois divorce courts are not required to order custody pursuant to the wishes of a child…no matter how mature the child seems.

“Clearly, a mature child’s preference as to custody should be given considerable weight when it is based on sound reasoning.  However, a court is not precluded from finding that the child’s preference is not in the child’s best interest.” IN RE MARRIAGE OF ADAMSON, 48 NE 3d 809 – Ill: Appellate Court, 3rd Dist. 2016 (citations omitted)

“If children are of sufficient maturity, their choice in custody matters is an important element to be taken into account, but is not controlling or binding upon the court.” In re Marriage of Apperson, 215 Ill. App. 3d 378, 384 (Ill. App. Ct. 1991)

An immature child’s opinion is of little to no value to an Illinois divorce court.

“While a mature child’s preference as to custody is to be given considerable weight when it is based on sound reasoning the child involved in the instant case is not mature, nor is there anything to indicate that her preference is based on sound reasoning. Furthermore, a court is not precluded from finding that the child’s preference is not in the child’s best interest especially when the child’s reasons are not related to her best welfare.”  Shoff v. Shoff, 179 Ill. App. 3d 178, 185 (Ill. App. Ct. 1989)(citations omitted)

While all the above case law estimating the wisdom and maturity of a child is a theoretical puzzle, the truth is the most important value a child has in determining where they will spend the night is the child’s weight. After a child hits 100-150 pounds, good luck getting them into a car when they do not want to go somewhere.

At that point, the child only gets harder to convince and harder to physically transport as each day passes. The only pathway to getting more parenting time from a child who has decided not to see a parent is to enforce parenting time through the parent the child actually wants to spend time with.

“If the court finds by a preponderance of the evidence that a parent has not complied with allocated parenting time according to an approved parenting plan or a court order, the court, in the child’s best interests, shall issue an order that may include one or more of the following:

1. an imposition of additional terms and conditions consistent with the court’s previous allocation of parenting time or other order;
2. a requirement that either or both of the parties attend a parental education program at the expense of the non-complying parent;
3. upon consideration of all relevant factors, particularly a history or possibility of domestic violence, a requirement that the parties participate in family or individual counseling, the expense of which shall be allocated by the court; if counseling is ordered, all counseling sessions shall be confidential, and the communications in counseling shall not be used in any manner in litigation nor relied upon by an expert appointed by the court or retained by any party;
4. a requirement that the non-complying parent post a cash bond or other security to ensure future compliance, including a provision that the bond or other security may be forfeited to the other parent for payment of expenses on behalf of the child as the court shall direct;
5. a requirement that makeup parenting time be provided for the aggrieved parent or child under the following conditions:(A) that the parenting time is of the same type and duration as the parenting time that was denied, including but not limited to parenting time during weekends, on holidays, and on weekdays and during times when the child is not in school;(B) that the parenting time is made up within 6 months after the noncompliance occurs, unless the period of time or holiday cannot be made up within 6 months, in which case the parenting time shall be made up within one year after the noncompliance occurs;
6. a finding that the non-complying parent is in contempt of court;
7. an imposition on the non-complying parent of an appropriate civil fine per incident of denied parenting time;
8. a requirement that the non-complying parent reimburse the other parent for all reasonable expenses incurred as a result of the violation of the parenting plan or court order; and
9. any other provision that may promote the child’s best interests.” 750 ILCS 5/607.5(c)

Enforcement can only go so far the larger and more stubborn the child is. ““[A]n alleged contemnor cannot be held in contempt when he or she is unable to comply through no fault of his or her own” In re Marriage of Tatham, 688 NE 2d 864 – Ill: Appellate Court, 5th Dist. 1997

The risk in enforcement is that the court eventually accedes to the child’s demands and modifies the parenting schedule to accommodate the child’s wishes in the hopes that such an accommodation will reduce tension if nothing else.

“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child” 750 ILCS 5/610.5(a)

Because a child’s preference becomes more and more important as the years pass, I would strongly advise that a parent demand and enforce their parenting time as soon as possible. Sooner or later, the child will be 18 and the court will have no jurisdiction over the child or the other parent.

An Illinois court “lacks jurisdiction under the Marriage Act to enter a visitation order against a person who has attained majority.” In re Marriage of Casarotto, 736 NE 2d 1169 – Ill: Appellate Court, 1st Dist., 5th Div. 2000

To discuss parenting time based on your child’s preferences or in defiance of your child’s preferences, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.