Do Children Have A Say on Who Gets Custody?

Many parents in Illinois believe that their children can choose which parent they live with if they are 14 years of age or older. While age is one factor a judge considers when determining which parent receives most of the parenting time (physical custody) of the child, it is only one factor that a judge may use to decide issues related to parenting time and allocations of parental responsibilities. Parents with children who have strong feelings about which parent they want to live with most of the time should seek the advice of an Illinois child custody attorney as soon as possible.

Parenting Time Replaces Custody and Visitation in Illinois

As of January 1, 2016, the Illinois Marriage and Dissolution of Marriage Act no longer uses the terms visitation and custody. Instead, the code refers to parental responsibility and parenting time. The courts now determine how to allocate parenting responsibility, which can include parenting time along with the decision-making power for important matters in the child’s life. Parenting time replaces custody and visitation schedules.

One of the goals of the new system was to help parents and courts develop more tailored and comprehensive agreements that allow parents to share the responsibilities of raising their child, in addition to sharing time with the child.

Can Children Choose Which Parent to Live with After a Divorce?

The new laws regarding parenting time and parental responsibility in Illinois do not include a provision that allows a child to choose which parent to live with based on the age of the child. Children cannot legally decide where they will live until they are 18 years of age, obtain a court order, or are emancipated.

The overriding consideration for the judge whether an agreement should be approved continues to be what is in the best interest of the child. With that in mind, judges continue to use various factors to determine the child’s best interest regarding parenting time and parental responsibility. One factor continues to be the child’s preferences when the child is old enough to speak for himself or herself.

A common assumption is that a 14-year-old child has the maturity to voice an opinion as to which parent to live with after a divorce, but the weight of that preference varies by case. For instance, a mature child who is 11 years old that makes a sound case for wishing to live with one parent because he or she does not get along with step-siblings or needs to live in a school district that offers a specific type of educational or recreational program might be given a substantial amount of weight when deciding parenting time.

Compare this scenario to a 16-year-old teenager who wants to live with one parent because the other parent enforces rules related to homework, chores, and curfews. The judge may determine that the preferences of the teenager are not in his or her best interest. Again, the overriding goal for a judge when hearing cases involving disputes related to parenting plans is what is in the best interest of the child. The child’s  preference may or may not be given sufficient weight to change the judge’s mind when the judge weighs other options such as:

• The age, health, and well-being of the parents;
• The stability of the home;
• The willingness of each parent to work together on parenting matters;
• The child’s attachment to other family members and the community;
• The child’s special needs, including educational and health needs;
• Any abuse or neglect allegations; and,
• The ability of each parent to care for the child.

Contact an Illinois Child Custody Attorney for Help

If your child is struggling because he or she wants to live with you, we encourage you to contact our Illinois child custody attorney to discuss options for filing a motion to change the parenting time and parenting plan. Depending on the facts in your case, your child may have a valid reason for requesting the court to allow him or her to live with you. Contact the Goodman Law Firm today for more information and guidance.