by Wes Cowell; updated 11 January 2015
Children don't determine parental responsibility awards (that's decision-making and parenting time), but their voices may be heard. Tight restrictions apply. Need advice? Call, leave your info, or schedule a consult.
One of the questions I am most frequently asked is "how old must my child be to be able to decide where he lives?" The simple answer is: 18. Our society doesn't let kids make decisions of that magnitude. Parents make the decisions and if divorcing (or already divorced) parents can't agree, a court will make the decision for them.
A child's preference about residential living arrangements may be heard by the court, however, and those wishes can carry great weight in determining decision-making authority and the parenting schedule. Illinois law says:
(a) Generally. The court shall allocate decision-making responsibilities according to the child's best interests. . . .
In determining the child's best interests for purposes of allocating significant decisoin-making responsibilities, the court shall consider all relevant fators, including, without limitation, the following:
. . .
(1) the wishes of the child, taking into account the child's maturity and ability to express reasonaed and independent preference as to decision-making;
Childrens’ stated preferences often sway judges. The child’s wishes, however, cannot override the judge’s requirement to make an award serving the child’s best interest after considering all of the other statutory factors. For example, in In re: Marriage of Lovejoy, 84 Ill.App.3d 53, 39 Ill.Dec. 501, 404 N.E.2d 1092 (3d Dist., 1980) custody of the three children was awarded to mother, despite one child’s stated preference to live with father. The same rule applies when modifying a child's residential living arrangements. Stickler v. Stickler, 57 Ill. App. 2d 286, 206 N.E.2d 720 (1st DIst., 1965); Strouse v. Strouse, 75 Ill. App. 2d 362, 75 Ill.App.2d 362, 220 N.E.2d 485, (4th Dist., 1966).
Parents' Testimony About Child's Wishes: Parents may, in rare circumstances, testify about their children's preferences. It happens only very infrequently. The "state-of-mind" exception to the hearsay rule applies to out-of-court statements by children as to their preferred residence when "made under considtions assuring trustworthiness."
Respondent next asserts the trial court, during the custody hearing, improperly refused to allow into evidence certain hearsay statements made by the children to a third party. A witness for respondent was John Montonano, a neighbor who knew the children. Respondent attempted to elicit from Montonano testimony to the effect that the children told him, apparently sometime shortly before the trial, that they wished to live with respondent. This testimony was objected to as hearsay and the court sustained the objection. Respondent contends the statements should have been admitted under the "state of mind" exception to the hearsay rule.
One of the factors a court is to consider in determining custody is the wishes of the children concerning with whom they desire to live. (Ill.Rev.Stat.1979, ch. 40, par. 602(a)(2).) Thus, one of the ultimate questions the court must determine is the wishes, or state of mind, of the children concerning custody. This being the case, the statements by the children made to Montonano shortly before trial expressing their then existing state of mind, though hearsay, were admissible if made under conditions assuring trustworthiness. (See Bradley v. Booz, Allen & Hamilton, Inc. (1978), 67 Ill.App.3d 156, 23 Ill.Dec. 839, 384 N.E.2d 746.) Hence, in the present case, the children's statements to Montonano, should have been admitted.
In re: Marriage of Rizzo, 95 Ill.App.3d 636, 51 Ill.Dec.141, 420 N.E.2d 555 (1st Dist, 1981).
Court Appointed Guardians and Representatives: In some cases it may be appropriate to bring in an outside expert under 750 ILCS 5/604.10 – a child psychiatrist, for example – to conduct a study and interview and evaluate all involved parties (mother, father, child, possible step-parents, other relatives, important care providers, baby-sitters, doctors, teachers, etc.).
The child also may have an attorney appointed to advocate on behalf of the child. The attorney will be charged with certain tasks and have different powers depending on the role assiegned by the court. They attorney may serve as either an "Attorney for the Child," a Guardian ad Litem (G.A.L.), or a Child Representative. 750 ILCS 5/506. Appointing an attorney for the child (or a G.A.L or child representative) is not required. Indeed, one Illinois appellate court has said: "In most cases the child's interests are adequately protected by one or the other parent, or by the court, and it is difficult to see how the presence of another lawyer could improve the process enough to be worth the cost." In re: Marriage of Wycoff, 266 Ill.App.3d 408, 417, 639 N.E.2d 897, 905, 203 Ill.Dec. 338, 346 (4th Dist., 1994).
"In Camera" Interview: Illinois law (750 ILCS 5.604.10(a)) permits children to talk with the judge directly to share their thoughts on the allocation of parental responsibilities and where they would like to live. "In camera" is latin for "in chambers" -- it means the talks are held in the judge's chambers, not in the open courtroom.
The law says the lawyers "shall be present at the interview unless otherwise agreed upon by the parties." The lawyers' attendance may be waived and, although it is a good idea to put that in writing, it doesn't have to be. In re: Marriage of Hindenburg, 227 Ill.App.3d 228, 169 Ill.Dec. 187, 591 N.E.2d 67 (2d Dist., 1992). The lawyers usually submit to the judge written, suggested questions or topics. The judge has a talk with the child based on general questions about school, friends, hobbies, health, etc. "[T]he scope of questioning in such an interview is largely a matter of the judge's discretion; he is not limited to asking what the children expressly prefer but may determine this from their answers to other questions, their personality, and other circumstances." In re: Marriage of Milovich, 105 Ill.App.3d 596, 434 N.E.2d 811, 61 Ill.Dec. 456 (1st Dist., 1986), citing In re Marriage of Ford, 91 Ill.App.3d 1066, 47 Ill.Dec. 541, 415 N.E.2d 546 (4th Dist., 1980).
The child arrives at the courthouse and usually waits in a kids' waiting room. The judge, the lawyers, and a court reporter get set up in the judge's chambers. Mom and Dad wait somewhere else. When everything is ready, a court employee brings the child to the judge's chambers using the employee's only elevators, hallways, staircases, etc. The judge sits at her desk without her robe -- some judges will don a sweatshirt or something to tone down the formality of the scene. Once the child is there, the judge and the child talk. The interview is transcribed by a court reporter (paid for by the court) and the transrcript is filed under seal and released only by court order. That's it.
The child must be old enough to be able to intelligently express a preference. In re: Marriage of DeFranco, 67 Ill.App.3d 760, 384 N.E.2d 997, 24 Ill.Dec. 130 (1st Dist., 1978). The testimony of a 14 year old child successfully swayed one case. In re: Marriage of Andersen, 236 Ill.App.3d 679, 177 Ill.Dec. 289, 603 N.E.2d 70 (2d Dist., 1990). One court gave significant weight to the preference of a "relatively mature" nine year old (In re: Marriage of Seymour, 206 Ill.App.3d 506, 565 N.E.2d 269, 152 Ill.Dec. 27 (2d Dist., 1990)) and one court's decision that went against a nine year old's request was reversed on appeal.
The court is not required to interview the children. Parents do not have a right to have the children interviewed. Whether or not to conduct such an interview and what to ask and talk about is within the judge's discretion. In re: Marriage of Johnson, 245 Ill.App. 3d 545, 614 N.E.2d 1302, 185 Ill.Dec. 617 (3d Dist., 1993). In re: Marriage of Willis, 234 Ill.App.3d 156, 599 N.E.2d 179, 174 Ill.Dec. 633 (3d Dist., 1992). If your judge decides not to listen to the child's wishes, that's all there is to it, short of an offer of proof and an appeal after the case.
Child's Direct Testimony: In some cases -- if you can believe this -- children may be called as witnesses: they can be put on the witness stand and examined and cross-examined all under the threat of prosecution for perjury. The decision of whether to put a child on the witness stand or whether to take the testimony in chambers in an in camera interview is left up to the judge. In re: Marriage of Willis, 234 Ill.App.3d 156, 174 Ill.Dec. 633, 599 N.E.2d 179, (3d Dist., 1992). This usually happens in post-decretal visitation disputes or Orders of Protection in which the child is a protected person. The children are usually older; although I once had to cross examine a 9 year-old girl in an inter-state visitation squabble.
Imagine the scene in a custody case, however: the child sits on the witness stand with Mom and Dad sitting at their respective counsel tables and maybe other relatives in the courtroom-and has to state for the record a preference of which parent should hold deciion making power over teh child's life. As one court said: "To have a child face such an array of belligerence and state on which side his preference lies is inhuman . . . . " In re: Marriage of Oakes, 45 Ill.App.2d 387, 393, 195 N.E.2d 840, 843 (1st Dist., 1964). In most cases, a GAL or an in camera interview will be more than adequate.
Don't let your attorney -- or your spouse's attorney -- talk with the children. Parents themselves should do all they can to minimize the children's involvement in the divorce. The kids should be protected from the court case. Seek an injunction, if necessary, to protect the children from unscrupulous behavior by your spouse or the other attorney. Call my office and use the methods approved by the court to educate the judge about the children's wishes.