The wishes of a minor child are both the most important thing and the least important thing in an Illinois child custody dispute.
A judge has told me, “A child gets a voice but not a choice.” Children have opinions but those opinions have weight appropriate to the maturity of the child. Otherwise, the parent who gave the child ice cream for dinner would always be the custodial parent.
So, how does a child express their wishes to the judge in an Illinois custody dispute?
Often, a child will express what they’ve seen, heard and felt to a judge in what’s called an “in camera interview.”
In camera is “in the judge’s private chambers” Black’s Law Dictionary (11th ed. 2019)
“[I]n a case involving visitation rights the primary concern is the welfare of the child and thus the court may, in its discretion, conduct an interview with the child.” In re Brooks, 63 Ill. App. 3d 328, 340 (Ill. App. Ct. 1978)
An in camera interview is a serious step that is only taken after alternative methods to determine the child’s wishes have not proven fruitful.
In Illinois, child custody no longer exists as a singular concept. Instead, child custody is divided into decision-making for the child and parenting time.
Both decision-making and parenting time are decided by an Illinois court based on the best interests of the child(ren). The wishes of the child(ren) are just one factor of many which an Illinois domestic relations court can look to when making parenting time and decision-making allocations.
“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:
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(c)(1)
“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:
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)
Typically, a child’s wishes are investigated by an attorney representing the child called a “Guardian Ad Litem” or a “Child Representative”
These attorneys for children in custody disputes have special responsibilities and investigative powers which include talking to the children and evaluating the children’s wishes.
“Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.
(c) As soon as practicable, the child representative, attorney for the child or guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.
(d) The child representative, attorney for the child or guardian ad litem shall take whatever reasonable steps are necessary to determine what services the family needs to address the custody or allocation of parental responsibilities dispute, make appropriate recommendations to the parties, and seek appropriate relief in court, if required, in order to serve the best interest of the child.
(e) The child representative, attorney for the child or guardian ad litem shall determine whether a settlement of the custody or allocation of parental responsibilities dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child.” Ill. Sup. Ct. R. 907
Guardian Ad Litems can then express the child’s wishes to the court via a 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 reports are almost always used as a substitute for an in camera interview.
“A better way than an in camera hearing to get the child’s preferences before the court may be through admission of the child’s hearsay statements, through the testimony of a [GAL], or through professional personnel.” In re Marriage of Hefer, 282 Ill. App. 3d. 77, 667 N.E.2d 1094, 1097 (1996)
Child Representatives do not issue a report and, therefore, are more restrained.
“The child representative shall meet with the child and the parties, investigate the facts of the case, and encourage settlement and the use of alternative forms of dispute resolution. The child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the powers of investigation as does a guardian ad litem. The child representative shall consider, but not be bound by, the expressed wishes of the child…The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments.” 750 ILCS 5/506(a)(3)
If a child representative was appointed to represent the child, the child representative cannot bring forth, as evidence, the wishes of the child under the rules of evidence because the child’s statements are hearsay.
“”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)
If there is no guardian ad litem, the only way for a court to consider a child’s wishes is to have the child testify directly to the court.
Children testify in court in a very particular manner that is both private and supervised. The judge does a personal interview with the child in their court room with a court reporter and attorneys present.
“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)(emphasis mine)
“The statute’s use of “may” makes the decision of whether to interview a child in camera a matter within the court’s sound discretion.” In re Marriage of Jessica F., 2024 IL App (4th) 231264
Anything that happens in a judge’s chambers is referred to as “in camera.”
This in camera interview is rarely pleasant. A judge in robes talks to a child while attorneys watch and listen. (Note: if a party is self-represented, they cannot attend the in camera interview as their own counsel “[T]he entire purpose of the in camera interview is to allow a court to ascertain a child’s preference free from the pressures and acrimony of open court…If a party is allowed in chambers during an in camera interview, the child’s ability to be forthcoming would be impinged and pressure would be added to an already stressful situation for the child.” In re Marriage of Knoche and Meyer, 750 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2001)
“By its very nature, an in camera interview is far less formal than an evidentiary hearing in a courtroom. It is intended to allow a child space to express his or her preference regarding allocation of parental responsibility outside the presence of the child’s parents.” In re Marriage of Doe, 2024 IL App (1st) 230935
Judges, parents, and everyone, really, are hesitant to have children testify in court. If there are other ways to determine the child’s wishes, the court can look to those resources instead of forcing an interview with the child.
Minors “are entitled to special protection by the courts.” Brandon v. DeBusk, 85 Ill. App. 3d 645, 648 (1980)
Under Illinois law, “there is no absolute right to present a child’s testimony during
a custody proceeding.” In re Marriage of Willis, 234 Ill. App. 3d 156, 159, 599 N.E.2d 179, 182
(1992)
In camera interviews “place[ ] a tremendous amount of pressure on the child.” In re Marriage of Hefer, 282 Ill. App. 3d 73, 76, 667 N.E.2d 1094, 1097 (1996)
“A court does not need to interview a child in order to consider and weigh what it considers to be the wishes of the child.” In re Marriage of Wanstreet, 847 NE 2d 716 – Ill: Appellate Court, 5th Dist. 2006
“[A] trial court [can] decline[] to conduct an in camera interview of [a child] because of its concern that [the child] would be put in the position of blaming [them]self for the outcome.” In re Marriage of Bates, 819 NE 2d 714 – Ill: Supreme Court 2004
A child’s testimony in an in camera interview, if considered as evidence would be subject to the right of either party to cross-examine that child.
“In all criminal prosecutions, the accused shall…be confronted with the witnesses against him” U.S. Const., amend. VI
The confrontation clause is an absolute right in a criminal case but still gets applied in civil cases (just not as strictly)
“Although confrontation rights may be an aspect of due process in purely civil proceedings, the confrontation clause need not be applied strictly in such proceedings.” In re K.L.M, 146 Ill. App. 3d 489, 495 (Ill. App. Ct. 1986)
A court, therefore, should assess whether the prospect of testimony and subsequent cross-examination is in the best interests of the child via an in camera interview.
“The court should not, however, reject outright proposed testimony of a child in custody proceedings, where the omission of such crucial testimony might be harmful to the child’s best interests. The trial court should take great pains under such conditions at least to conduct an in camera conference with the child to determine the competency of the child, as well as the competency of any evidence which the child might present. The court should also then 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. A report of the essential material matters developed at the in camera conference should be made of record by the trial court, and the court should state the reasons for allowing or disallowing the testimony of the child, and also note the factual information which the court developed from the conference with the child which would be considered by the court in its ultimate determinations in the case.” Crownover v. Crownover, 337 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 1975
In camera interviews are delicate and need to balance the need to express the wishes of the child against the possible trauma that could be induced by a child believing (rightfully) that they are impugning either parent’s character.
Still, in some situations, there is no other choice but to proceed with an in camera interview to properly ascertain the truth about what the child has seen, heard and felt.
In camera testimony is purely to determine the child’s wishes NOT to provide other evidence.
An improper “in camera interview was based mainly upon petitioner’s desire to have [the child] tell the trial court what respondent allegedly did to [the child], not to ascertain [the child]’s wishes about visitation” In re Marriage of Agers, 2013 IL App (5th) 120375
If something beyond the wishes of the child is testified to in camera, that testimony without cross-examination would be a denial of parent’s due process rights which “requires a party to be given the opportunity to be heard at a meaningful time and in a meaningful manner.” In re H.B., 2022 IL App (2d) 210404, ¶ 50
Finally, if an in camera interview proceeds, the court needs to weight the child’s testimony based on the maturity of the child. “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)
It must also be considered that the child is being manipulated in advance of the in camera interview. as the prospect of a future in camera interview “provides an incentive for parental manipulation and intimidation of the child.” In re Marriage of Hefer, 282 Ill. App. 3d 73, 76, 667 N.E.2d 1094, 1097 (1996)
“Even if a child is free from parental manipulation, there is good reason to doubt a young child’s stated preferences will necessarily coincide with the child’s best interests. Wycoff, 266 Ill. App. 3d at 414. For example, to his detriment, a child may prefer the lenient parent over the disciplinarian or the fun parent over the not-so fun parent. Why place a child who is already in a vulnerable spot at the center of a custody dispute in the unpleasant position of voicing a preference that may well be unhelpful to a best-interests determination? Obviously, the younger the child, the less beneficial such an interview may be.” In re Marriage of Jessica F., 2024 IL App (4th) 231264
Which reiterates a courts preference for GAL testimony over in camera interviews.
“[C]ourts should utilize GALs if they wish to have the benefit of a neutral, informed opinion on the subject of custody.” Wycoff, 266 Ill. App. 3d at 420
If you would like to discuss a possible in camera interview with a child in your Illinois child custody and/or divorce case, contact my Chicago, Illinois family law firm to discuss this matter with an experienced Illinois divorce attorney.