Children's decisions and divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

More about This Topic

Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages

Recent Articles

Leave a Comment





At What Age Can A Child Choose Not To Visit The Non-Custodial Parent In Illinois?

Children's decisions and divorce

Parenting children is not easy.  Parenting children is even harder when you’re not parenting in the same household as the other parent.  The shuttling back and forth of children to two different homes is hard on everyone involved. Children are by definition immature and cannot make decisions for themselves but that doesn’t mean children don’t have opinions.  How old does a child have to be before they can decide if they will visit a parent in Illinois?

The Initial Parenting Plan And A Child’s Wishes

Illinois visitation laws say that when determining the parenting schedule, the two parents are supposed to both submit proposed parenting plans to the courts within 120 days of the filing of the divorce or the parenting action.

“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)

Hopefully, upon perusing their respective proposed parenting plans, the parties can independently negotiate a final agreed allocation of parenting responsibilities and parenting time to be submitted to the court.  This final allocation of parenting responsibilities and parenting time will then govern where the children visit, spend the night and with whom.

The children are NOT consulted when preparing a final parenting plan in Illinois.

If the parties remain disagreed after exchanging parenting plans, the parties are required to attend a mandatory mediation regarding the parenting schedule.

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist” 750 ILCS 5/602.10(c) 

If after mediation, there is an agreement, the parties can submit the mediation report to their attorneys for final preparation of the agreed allocation of parenting responsibilities and parenting time.

Children are NOT allowed in mediation.  Children have no voice in the mediation. The parents can enter into the final agreement without consulting the children.

If the parties still can’t agree on a parenting schedule after mediation, the Illinois courts can step in and decide what the children’s parenting schedule should be.

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)

Illinois courts will consider the child’s wishes along with a multitude of other factors.

“the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time.” 750 ILCS 5/602.7(b)(2).

Once the order for parenting time is entered, the order must be followed until a new order is entered saying otherwise. “Illinois courts have held that a custodial parent may not disregard the visitation requirements of a dissolution judgment merely because his or her children do not desire to visit the noncustodial parent” In re Marriage of Charous, 855 NE 2d 953 – Ill: Appellate Court, 2nd Dist. 2006

Any subsequent modification of the allocation of parenting time and parenting responsibilities must go through the exact same process: exchange of proposed parenting plans, mediation, etc.

Guardian Ad Litems And The Wishes Of The Child

Typically, parents who cannot agree on a parenting schedule will, obviously, provide conflicting testimony to the court.  For example, “I’m a wonderful parent, the other parent is awful and the kids want to live with me.”

How can a judge possibly know who is telling the truth in just a few minutes of testimony? The judge can’t so the judge appoints a Guardian Ad Litem to investigate what is really going on with the family.

A Guardian Ad Litem is an attorney appointed to represent the best interests of the child. The Guardian Ad Litem functions as “the eyes and ears of the court.” The Guardian Ad Litem will visit both homes, interview both parents and, finally, interview the children.

The Guardian Ad Litem can then report back to the court what the wishes of the children are with respect to visitation and parenting time.  The Guardian Ad Litem also makes a recommendation to the court regarding visitation and parenting time which can be based, in part, on the child’s wishes.  In my experience, judges are accept the Guardian Ad Litem’s recommendations 99% of the time…unless one of the parent’s attorneys can successfully rebut the Guardian Ad Litem’s recommendations.

Child’s Testimony To The Court Regarding Visitation Preference

If it actually becomes necessary for the court to hear the child’s preference from the child’s very own mouth, there is a procedure that is less terrifying than putting the child on the stand and making the child subject to cross examination and other hostile and unpleasant court activities.

Illinois family law judges can interview the child In Camera which is a Latin term meaning “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)

With a court reporter and lawyers present, there shouldn’t be anything strange happening in the judge’s office that could be perceived to be a literal “back room deal.”

In my experience, both attorneys will waive the court reporter and even the presence of counsel so the child will feel more comfortable talking with the judge.

Parents’ Opinion Of The Child’s Wishes

Parents can never believe it when a child expresses their wish to be with the other parent.  This is because the child desperately wants to please both parents and will tell each parent “I want to live with you.”

The parents will say, “My child says he wants to live with me,” but a statement like that is not admissible in court because it is hearsay.  Hearsay is when you testify about what someone else said.  In Illinois courts, if you want to know what someone said, you have to bring the person into court who said it and ask them directly.

So, Testifying about what your child said is hearsay and the court will not consider that testimony.

There is one exception to this hearsay rule in regards to children’s opinions.  That is the “state of mind” exception to the hearsay rule.

A state of mind exception to the hearsay rule is “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” Illinois Supreme Court Rule 803(3)

So, if your children’s other parent testifies about what the children said, say “Objection. Hearsay.”  If you want to testify about what your children said the other parent objects, remind the court that you are testifying as to the children’s “state of mind.”

What If One Child Wants To Visit The Parent And Their Sibling Refuses to Visit the Parent?

If one child is refusing to visit a parent, the courts are more likely to enforce the visitation because the default in Illinois family court is to always keep siblings together. 

“[C]ourts have held that a custody order which separates siblings is not considered to be in their best interests, but it can be under some circumstances.” Marriage of Seymour, In re, 565 N.E.2d 269, 206 Ill.App.3d 506, 152 Ill.Dec. 27 (Ill. App. 1990)

The Maturity Of The Child In Making Decisions For Themselves

The Illinois statute specifically directs the courts to look to the maturity of the child.  A court is unlikely to consider a 4 year old’s preference while extremely likely to consider a 16 year old’s preferences. 

“the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time.” 750 ILCS 5/602.7(b)(2).

So, the answer to question “at what age can a child choose not to visit the non custodial parent in Illinois?” is “there is no exact age.” In Illinois, there is no magic age where a child can decide if they’ll follow the court’s visitation orders or not.  Actually, there is a magic age, the age of 18…when the child is no longer a child.

Furthermore, there is no age where a child can choose which parent to live with. The child’s wishes will be heard and that wish will be weighted based on the child’s maturity.

Furthermore, many teenagers are effectively the size of adults.  It may be physically impossible to force a child to visit a parent they do not wish to visit.  If you call the police to enforce a visitation order, do not expect a police officer to take the child out of a house, put a child in a parent’s car and take them to the other parent’s house.

The police officer will simply tell you to “go to court”

What If The Other Parent Is Encouraging The Child Not To Visit

The other parent should encourage visitation but only to the extent that the other parent is following the parenting order. So, the other parent should make the child available at the scheduled pick up location, have clothes packed, etc.  But there is no parenting agreement that ever contemplates what a parent is to do when the child refuses to visit the other parent.

It is very difficult to prove that it is, in fact, the other parent who is encouraging the child to avoid visitation.  If you truly believe the other parent is at fault for the child’s refusal to visit, you need to lean on the statute requiring the courts to look at the level of cooperation

“the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;” 750 ILCS 5/602.5(c)(5) 

“the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” 750 ILCS 5/602.5(c)(11)

If the other parent is blatantly not cooperating with you and failing to encourage a close and continuing relationship between you and the child, you can ask the court to change the parenting schedule.

This goes to the extreme of claiming that the other parent has alienated the child to such an extent that the only cure is for the child to live with the alienated parent.

To completely transfer custody in the wake of parental alienation, the party must request a restriction of the alienating parent’s parenting time under the statute.

“if the court finds by a preponderance of the evidence that [the] parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child. Such orders may include, but are not limited to, orders for one or more of the following:

“a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;”  750 ILCS 5/603.10(a)

The Real Solution To a Child Not Wanting To Visit A Parent

The real solution to the incredibly sad situation where a child does not and will not visit a parent is therapy.  There is no other way to resolve this schism except to have a therapist do individual and group therapy with the child and their parents.

A child who is completely estranged from one parent will act out in very strange and hurtful (to themselves) ways in the future.  This is usually in the form of the child dating and/or marrying people who resemble who the child thinks their parent is like…so essentially, a very negative version of the parent the child is estranged from.

Any court in Illinois will happily order that a child and the parents attend therapy in order to re-establish a healthy relationship between a child and their parent.

If you’d like to discuss your parenting time and your child’s decisions with an experienced Chicago divorce lawyer, please contact my office to schedule a free consultation.