Factors Determining Child’s
Best Interest

by Wes Cowell; updated 1 January 2016

 

Parental responsibility and decision-making awards are almost always — and I mean almost ALWAYS — settled between the parties and all that is left for the judge to do is to rubber-stamp the Parenting Plan.  If your case is one of those one-in-a-hundred or so that ends up in a contest, this article is for you -- read it and call me.  If your case might settle, skip this article, call me, and let's focus on the Parenting Plan.  Need advice?  Call, leave your info, or schedule a consultation.

 

When the parents cannot agree to a joint Parenting Plan, it is left to the court to allocate parental resposibilities and decision-making authority.  Nothing in the law requires that each parent be allocated decision-making responsibilities.  These cases are difficult -- for the parents, for the lawyers, and for the judges:

 

In the first reported decision involving custody of a child (see  First Kings 3:16), Solomon, vested with plenary powers and unhamperred by prescedent, rendered a judgment which has been cited through the ages as incontrovertible evidence of his great wisdom. Today, a trial judge is almost daily presented with custody problems which are far more complex.  

 

Elbe v. Elbe, 100 Ill. App. 2d 221, 226, 241 N.E.2d 328, 331 5th Dist., 1968).


Parental Responsibility and Decision-Making awards must be decided "according to the child's best interest"   750 ILCS 5/602.5(a).  

 

When allocating between the parents significant decision-making responsibilitiesIllinois law (750 ILCS 5/602.5) directs the court to consider "all relevant factors, including" fifteen specific factors.  When a lawyer starts to prepare the custody part of a contest, she goes through this list of fifteen factors and sizes up the facts pro and con for each one.  Specific findings of fact are not required under 750 ILCS 5/602.5, but there must be some indication in the record that the trial court considered the various factors listed. In re Marriage of Shedbalkar, 95 Ill.App.3d 136, 138, 50 Ill.Dec. 301, 419 N.E.2d 409 (1st Dist., 1981); In re Marriage of Kennedy, 94 Ill.App.3d 537, 544, 49 Ill.Dec. 927, 418 N.E.2d 947 (1st DIst., 1981); In re Custody of Allen, 81 Ill.App.3d 517, 520, 36 Ill.Dec. 767, 401 N.E.2d 608 (3d Dist., 1980).

 

(Note:  The law presents fifteen factors in a numbered list.  The prior law had a similar, ten-item, list.  The current law adds seven new factors, deletes two old factors, and rearranges the order of the others.  That tells us that the legislature wants courts to give greater consideration to factors appearing higher in the list and less consideration to factors appearing lower in the list.  Otherwise there would have been no need rearrange their order.  When a factor weighs in my client's favor, and has been shuffled up the list, I point out to the judge that the legislature has recognized the importance of that factor in our evolving society.  It's not a terribly strong argument-enhancer, but it's worth pointing out.

 

The factors are listed below in the order in which they appear in the current law, with their former position noted parenthetically.)

 

The specific factors are:

 

  1. (2) The wishes to the child:  The child's wishes must be considered.  That doesn't mean the child gets to choose.  The law tells the court to take into account the child's maturity and ability to express reasoned and independent preferences as to decision-making.  Children usually don't testify about their custodial wishes.  Instead, that information is provided to the court through GAL reports and expert witnesses.  Even a well-reasoned preference by a child may not be in the child's best interest.

     

  2. (4) The child’s adjustment to his home, school and community:  In other words, the court should consider the benefit to the child of maintaining the child's status quo.  Judges like to try to keep kids in their homes so as to maintain some semblance of continuity.  They get to stay in their neighborhood, go to the same school, keep their same friends, etc. Where the parents separate early in a case, judges tend to leave the kids with the parent who stays in the marital residence for the sake of maintaining the children's status quo.

     

  3. (5) The mental and physical health of all individuals involved:  This factor arises in virtually every case.  Even if both parents and the children are physically healthy, the mental health of both parents is put in play in any custody case.  Mental health treatment received by a parent prior to or during the case is usually not admissible in court.  Both parents, however, are usually subjected to a battery of interviews and psychiatric tests in any custody case.  The 2016 amendment to the law changed "parents and children" to "all individuals involved.")

     

  4. (new, 2016) The ability of the parents to cooperate to make decisions, of the level of conflict between the parties that may affect their ability to share decision-making.  ThIs factor was added in the 2016 amendment. 

     

  5. (new, 2016) The level of each parent's participation in past significant decision-making with respect to the child.

     

  6. (new, 2016) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child.

     

  7. (1) The wishes of the parents.

     

  8. (new, 2016) The child's needs.

     

  9. (new, 2016) The distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules and the ability of the parents to cooperate in this arrangement.  This factor makes no sense and it should not appear in the law.  Lawyers used to argue this factor in custody cases before the 2016 amendment (when this factor was added) . . . and those arguments didn't make any sense then, either.  We're talking about allocating parental responsibilities and decision-making for health, education, religion, and extracurricular activities.  This factor seems to suggest that if the parents live next door to each other, that will create a more favorable decision-making environment than if they lived farther apart.  The reality is -- with smart phones, texting, e-mails, scanned .pdf files, snap-chats, facebook, Face-time, Skype, etc., -- parent living in India will be able to communicate, cooperate, and join in decision-making as effectively as a parent living next door. The authors of the law seem to be living in another century.

     

  10. (new, 2016) Whether a restriction on decision-making is appropriate under Section 603.10.

     

  11. (8) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child:  This is the most contentious factor.  Some parents conclude that they can gain an advantage in a custody contest by refusing to cooperate with the other

     

  12. (6) The physical violence or threat of physical violence by the child's parent directed against the child. If your spouse has obtained an Emergency Order of Protection that names the child as a protected person, don't delay. You need to attack the order as soon as possible. The findings of the Order of Protection will be used against you later, at the conclusion of the case, as evidence of the importance of this factor in the court's decision.

     

  13. (7) The occurrence of abuse against the child or other member of the child's household.  Note that the former version of the law specifically referenced the definition of "abuse" in Illinois Domestic Violence Act, 750 ILCS 60/103.  That reference was dropped in the 2016 amendment.  If your spouse has obtained an Emergency Order of Protection, attack the order as soon as possible. Failing to do so will establish a status quo: you're out of the house, your spouse is the primary care-giver for the children, the bills are being paid, everyone is getting along without a further threat of violence, and you're out of the picture. For a judge, your case is almost over. To preserve any realistic chance for a claim of custody or joint custody, you must attack that status quo as soon as possible to reinsert yourself in the children's lives.  

    Whether or not committed in the presence of the children, violence may be enough to undermine a parent's custodial aspirations. Illinois law specifically requires courts to consider the threat of violence against the children or others, and to also consider any history of violence or abuse against the children or any other person.

     

  14. (9) Whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated.  This factor is a manifestation of common sense.

     

  15. (new, 2016) any other factor that the court expressly finds to be relevant.

 

The factors eliminated in the 2016 overhaul of the law are:

 

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

. . . .

(10) the terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.

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