Posted on December 10, 2017

Will My Children Have To Testify In My Illinois Divorce?

Children are a part of a family and their voices can be used to influence the eventual structure of that family after the divorce. Yet, it isn’t always certain that children will or will not testify in a Chicago, Illinois divorce proceeding.

In Chicago, Illinois, parents, children and the court system in general are loathe to involve children to the point where children have to provide testimony.  This is generally acknowledged as traumatizing at worst and superfluous at best. In fact, it’s even rare for adults to testify in an Illinois divorce case.

If a child’s testimony is needed, the Cook County Domestic Relations 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.

If a child does testify during an Illinois divorce, that child will be mature. “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, 2016 IL App (3d) 150105

But, the courts usually keep children from testifying by using a variety of other methods to

Hearsay Instead Of Child Testimony

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)

Courts are so loath to bring children into court that they can conduct a separate, private hearing about a child’s out-of-court statement regarding abuse.

“An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” 735 ILCS 5/8-2601

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.

In Camera Interview

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 Camera interviews of children are not mandatory.

“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, 364 Ill. App. 3d 729, 733 (2006).

“Illinois courts have repeatedly held that the matter of in camera interviews is within the discretion of the trial court. When the trial court determines that good reason exists not to conduct such an interview, a reviewing court will not substitute its judgment for that of the trial judge.” In re Marriage of Johnson, 245 Ill. App. 3d 545, 544 (1993).

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.

An in camera interview is still rare and, when done, done with particular care because “[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.”In re Marriage of Wycoff, 266 Ill. App. 3d at 415.

Oftentimes, I will request an in camera with the children as a way to avoid the costly expense of appointing a guardian ad litem.  This seems to be especially appropriate for teenage children.

Guardian Ad Litems And Child Representatives In Lieu Of Child Testimony

A custody battle is so textured that it is often impossible for the attorneys and the judge to adequately investigate the numerous issues that involve what truly is in the best interests of the children.

So, a court has the power to appoint either a Guardian Ad Litem or a Child Representative to independently investigate and report back to the court regarding the children.

“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney” 750 ILCS 5/506(a)

The child can communicate directly with the Guardian Ad Litem or the Child Representative and those attorneys can report back to the court the child’s “testimony”

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

“The child representative shall consider, but not be bound by, the expressed wishes of the child.” 750 ILCS 5/506(a)(3)

These reports from the Guardian Ad Litem or Child Representative get around the hearsay issues I discussed above.

Evaluators And Child Testimony In An Illinois Divorce/Custody Case

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.”

I hate to involve in kids in their parents divorce proceedings but sometimes it’s the only way to clear the air. Contact my Chicago, Illinois law office to speak with a divorce attorney and weigh the pros and the cons of allowing your children to testify (or just talk) to the court.

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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.

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