Child Custody: Does the Child Decide?

 Posted on November 06, 2015 in Family Law

It is common for a child with divorcing parents to express a desire to live with one parent over another. However, it is a frequent misconception that a child, especially an older child, can choose which parent to live with. In Illinois, the law does not allow a child to decide his or her custody arrangement. Instead, “the wishes of the child” is only one of a multitude of factors that a court considers when it awards custody.

Why a Child Cannot Choose Who to Live With

There are very good reasons for not allowing a child to determine his or her custody arrangement. For one, courts do not allow minors to make legally binding decisions. This includes prohibiting children from making decisions regarding their placement. Additionally, a court would not want to put a child in a position where he or she would have to make such an important decision about his or her future. Finally, not allowing a child to decide his or her placement helps protect the child from undue influence or persuasion from his or her parents or other potential guardians.

The Wishes of the Child

Illinois law states that the wishes of the child will be considered based on the child’s maturity and his or her ability to express reasoned and independent preferences. Generally, a court considers a child’s preference if the child is old enough to articulate his or her preference to a judge. While there is not a specific age at which a child can decide who to live with, the older a child is, the greater the likelihood that the child’s wishes will influence the deciding judge.

Because the child’s wish is only one factor that a court considers, a court is not bound by a child’s stated wishes. Illinois law governs custody and a court must determine the best interest of the child when it decides the child’s placement. The facts and circumstances of each case and each child are different and a court carefully evaluates multiple factors when it decides custody. To determine a child’s best interests, a court will balance the child’s wishes along with other factors such as the family’s situation, the parent’s wishes, the child’s school and community, and the child’s relationship with his or her siblings. It is possible that any of these factors could be given more weight than the child’s custodial preference.

Ascertaining a Child’s Wishes

To ascertain a child’s custody preference, a judge may either speak with the child directly or may get the opinion of an expert such as a psychiatrist or other professional. Depending on the situation, it is possible that a judge will appoint an attorney or a guardian ad litem to represent the child.

Consult with a Family Law Attorney

Determining child custody is often difficult and emotionally challenging for all parties involved. It is a delicate situation where the most important factor is the best interests of the child. Our skilled DuPage County family attorneys can help you work through different options regarding child custody arrangements. To schedule a case consultation, contact us today.