What About What the Child Wants?

In a divorce case involving children or in parentage case, it is usually pretty easy to figure out what each of the parents wants. What often isn’t clear is what the child wants, and how much weight the court should give to a child’s expressed wishes.


The Illinois Marriage and Dissolution of Marriage Act (IMDMA), which governs child-related issues arising in divorce and parentage cases, sets out a series of factors a court should consider in making determinations related to the allocation of decision-making responsibilities (i.e., “custody”) and parenting time (i.e., “visitation”), as well as other child-related issues.  This list is commonly referred to as the “best interests of the child” factors.

One of the enumerated factors that the court should consider is the wishes of the child. Generally, when deciding how much weight to give a child’s wishes on any given issue, courts consider the child’s age, intelligence, maturity, and self-awareness. The court will also consider the substance of the child’s wishes and attempt to make a determination as to whether the child has been coached or influenced to have said opinions and wishes.  What that means is that each case is different, which produces unpredictable results.


The IMDMA makes no reference to a child’s specific age.    Be that as it may, a review of some related statutes and case law may offer some guidance in answering some of these questions.  The Emancipation of Minors Act defines “mature minor” as a person 16 years of age or over and under the age of 18 years who has demonstrated the ability and capacity to manage his own affairs and to live wholly or partially independent of his parents or guardian. Perhaps this might indicate that if a child is over the age of sixteen (16) they are presumed more mature and their wishes should be given substantial weight.


Illinois’ case law suggests that a younger child’s expressed wishes may not be influential to the court.  In Shoff v. Shoff, the Appellate Court affirmed the trial court’s decision to modify the physical custody of the party’s eight (8) year old minor child despite her wishes to the contrary because there was no indication that the child did not like living with her father even after she stated that she expected to live with her mother because most girls live with their mothers, while most boys live with their fathers.


On the other hand, in In re A.I.G-K., when the guardian ad litem failed to consider the wishes of a ten (10) year old child in a case related to the modification of physical custody, the Appellate Court found that the guardian ad litem had given an incomplete report and reversed and remanded the trial court’s decision.  In that case, the GAL testified that he would generally not give a lot of weight to the testimony of a ten-year-old.  However, the child in that case was found to be “bright, articulate, and mature.”  In reversing the trial court’s decision, the Appellate Court found that it was reversible error for the trial court to fail to give any consideration to the child’s wishes to live with her father.


The court can also rule against a child’s wishes if it believes those wishes are not in the child’s best interests.  In In re Marriage of Adamson, a 14-year-old child testified that he preferred to engage in less parenting time with his father than what was originally ordered. In support of his position, the child testified that he was closer to his mother, his father yelled a lot and had intentionally done mean things, such as failing to bring his uniform jerseys and shoes on time to a game. The Appellate Court upheld the trial court’s decision to deny the mother’s motion to modify parenting time because the child’s testimony was more aptly described as normal teenage/parent behavior issues rather than a clear preference related to parenting time, which did not support the parent’s assertion that a substantial change in circumstances had occurred.


The IMDMA, relevant statutes, and case law do not produce any easy answers the question of when and whether a child’s wishes should be given substantial weight in child-related litigation.  It is critical to view the facts of a specific situation and the child’s wishes as part of the totality of that situation in order to decipher whether that factor will be predominant in the court’s decision-making process. The older and more mature the child, the more influential the wishes may be; however, the reasoning and context behind the wishes is equally important to ensure that the wishes are best for the child.  For more information, contact us.

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