Note: this article was largely inspired by a lecture made by David Del Re at the Lake County Family Law Conference in February of 2025 which I attended. Mr. Del Re does excellent work and I endorse him and his firm for all family law matters.
There’s an old adage in family law courts that “children should have a voice but not a choice”. Children are also highly discouraged from testifying in divorce cases. Without testifying, anything a child alleged said is impermissible hearsay. So, how do children make their wishes known to the court in an Illinois divorce.
Why Do Children Need To Have A Voice In An Illinois Divorce?
Courts base all decisions related to children on “the child’s best interests” 750 ILCS 5/602.7(a), 750 ILCS 5/602.5(a)
Kids do not get to pick which parent they will spend time with but the court can consider their wishes.
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:…(2) 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)
Likewise, the court must also consider the child’s wishes as to which parent makes what decisions for the child.
“Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making” 750 ILCS 5/602.5(d)(1)
The child’s wishes have to be communicated to the court somehow. But, courts do not like putting kids in the witness box and subjecting them to cross-examination.
“The court should…determine whether the best interests of the child would be served by permitting her to testify or be sheltered from testifying and being subjected to vigorous cross-examination.” Crownover v. Crownover, 337 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 1975
Without testifying, the children’s wishes are hearsay testimony.
Hearsay And Children’s Testimony In An Illinois Divorce or Parentage Action
“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(a)
Hearsay is not allowed in an Illinois court of law.
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Ill. R. Evid. 802(b)
To apprise the court of the children’s wishes without subjecting the children to the trauma of being cross-examined, the court usually relies on a Guardian Ad Litem’s report.
“The Guardian Ad Litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)
Guardian Ad Litems are not subject to the rules of evidence including the bar against hearsay.
“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)
The Guardian Ad Litem is the perfect vehicle for a child to let a court know their wishes. However, what if the Guardian Ad Litem is, in your opinion, incorrectly reporting the children’s wishes? How do you bring the child’s true wishes to the court’s attention without those desires being filtered through the Guardian Ad Litem?
604.10(b) Court Professional
The child may state their wishes to a second investigator appointed by the court. That investigator is usually a psychiatrist or other medical professional who can analyze the child’s wishes in context of the child’s psychological condition.
“The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination.” 750 ILCS 5/604.10(b)
604.10(b) experts opinions and reports have great weight because their testimony is expert testimony. Experts, however, are expensive.
“The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508.” 750 ILCS 5/604.10(b)
If the 604.10(b) professional, again, does not accurately report the child’s wishes an independent professional may be hired (and paid for) by the party requesting that independent professional.
“In a proceeding to allocate parental responsibilities or to relocate a child, upon notice and motion made by a parent or any party to the litigation within a reasonable time before trial, the court shall order an evaluation to assist the court in determining the child’s best interests unless the court finds that an evaluation under this Section is untimely or not in the best interests of the child. The evaluation may be in place of or in addition to any advice given to the court by a professional under subsection (b)….The party requesting the evaluation shall pay the evaluator’s fees and costs unless otherwise ordered by the court.” 750 ILCS 5/604.10(c)
In lieu of all these interviews and experts, the court can just ask the child, directly, what their wishes are.
In Camera Interview Of The Child
Slightly less traumatic than testifying in open court is the option to let the child speak directly with the judge.
“Court’s interview of child. 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 5/604.10(a)
Again, there is no guarantee as to what will come out of the child’s mouth when they are with the judge. How do you get a child’s wishes, as stated in the past, in front of the judge?
Hearsay Exceptions For Children’s Testimony In An Illinois Divorce Or Parentage Action
The bar against hearsay is famous for having a multitude of exceptions several of the exceptions can be used for children’s testimony.
One can always testify to what a child said and simply say “I’m not presenting this to prove what the child said, therefore, it’s not hearsay.” This is rather mealy-mouthed and will not likely overcome a hearsay objection.
Children often say whatever is on their minds at the time. Therefore, almost anything they say can be characterized as them speaking to their “state of mind.” A statement as to a person’s ‘state of mind is an exception to the bar against hearsay.
“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)” Ill. R. Evid. 803
“[C]hildren’s statements as to whom they prefer as a custodian, or where they desire to live, are admissible under the state-of-mind exception to the hearsay rule. ” In re Marriage of Deckard, 246 Ill. App. 3d 427, 431 (Ill. App. Ct. 1993)
Likewise, kids don’t think things through. Kids usually just say what’s on their immediate mind. This can qualify as an exception as an “excited utterance.”
There is an exception to the bar against hearsay for “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ill. R. Evid. 803
Statements of a child about abuse are an exception to the bar against hearsay.
“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.” 750 ILCS 5/606.5(c)
Statements about abuse must be corroborated by some additional evidence, however. Usually, a photo or police report. Something to confirm the child is not making up the abuse out of whole cloth.
“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 5/606.5(c)
Children’s Hearsay In An Order of Protection Case
Orders of protection often occur before or during a divorce or parentage order. Children’s exposure to domestic violence is taken very seriously and their out-of-court testimony is often admitted under special exceptions which are not the exceptions allowed from the Illinois Marriage and Dissolution of Marriage Act like 750 ILCS 5/606.5(c)
“[T]he statutory provisions governing orders of protection, which are contained in article II of the Domestic Violence Act….provide that the rules of civil procedure are to govern admissibility of out-of-court statements related to child abuse.” In re Marriage of Portillo, No. 3-20-0221, 9 (Ill. App. Ct. 2021)
The Illinois Code of Civil procedure provides explicit instructions on how to get a child’s hearsay testimony into evidence.
“In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13… the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.” 725 ILCS 5/115-10(a)
A special hearing must be conducted first to determine if the child’s hearsay testimony is reliable enough to be considered by the court.
“ Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and. (2) The child or person with an intellectual disability, a cognitive impairment, or developmental disability either:
- (A) testifies at the proceeding; or
- (B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement; and
(3) In a case involving an offense perpetrated against a child under the age of 13, the out of court statement was made before the victim attained 13 years of age or within 3 months after the commission of the offense, whichever occurs later, but the statement may be admitted regardless of the age of the victim at the time of the proceeding.” 725 ILCS 5/115-10(b)
In my opinion, this additional hearing to allow for children’s hearsay for orders of protection is ridiculous. Illinois courts can rely on any kind of law available to them as all Illinois courts have “general jurisdiction.”
[A] circuit court is a court of general jurisdiction” Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 530 (Ill. 2001) Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001)
Being a good parent during a divorce means keeping your kids out of the divorce process. The best way to keep kids out of court while letting them have a divorce in custody matters is to get the children’s hearsay testimony into evidence.
To learn more about how evidence works in an Illinois courtroom, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
