Divorce or separation cases are both complicated proceedings that involve child custody, visitation, and support determinations. Even when parents are working together on these issues, they are highly emotional situations where both parents want to spend time with their children in a new family formation. A Metro East child custody attorney can assist parents in negotiating a fair and realistic parenting plan or represent a parent’s wishes in litigation.
Depending on the age of your child or children during separation, they will likely have very strong emotional reactions, and this can result in strong opinions on which parent they want to live with. This can be hard for both parents, but it’s important to understand the impact of a child’s opinions on the court process. Although children’s wishes are considered by Illinois courts, children cannot make the final choice on which parent they live with.
Determining a Parenting Plan
The court prefers that parents create their own parenting plan together, and this is also beneficial for parents and their families. You know your family and your needs, so it can be helpful to work with your co-parent on a plan that fits those needs. This plan must then be submitted to the court, which will ensure that the plan is in the child’s interests before approving it.
Unfortunately, parents cannot always work together on a plan. When parents have a contentious relationship or refuse to compromise, the court will decide how to assign child custody and parenting time. When the court decides on custody and a parenting plan, they base all their choices on the child’s interests. To determine what is in the child’s interests, the court looks at several factors, including the child’s preference.
How Much Does a Child’s Preference Affect Custody?
The weight that a child’s preference is given in custody determinations depends mostly on their age. However, no child who is under the age of 18 can choose definitively the parent or guardian they will live with. Although they can give their wishes, this is only one factor that the court considers when deciding the child’s interests.
The closer a child is to 18 after they turn 14, the more likely the court will weigh their opinions more seriously. A child’s maturity level also impacts how the court weighs their wishes. If a child shows maturity and reason in their preference, even if they are 14 or younger, the court may still put more weight into those wishes.
However, the court is also aware that a child’s preference can be altered by which parent is more lenient or by one parent exercising parental alienation tactics. Parental alienation and other tactics of parental manipulation are more likely to impact younger children. This is why the court has the final say in the custody order and looks at more than the child’s wishes.
How the Court Determines a Child’s Interests
In addition to a child’s wishes, the court looks at several factors in the family’s life to determine the custody arrangement that is in the child’s interests. These include:
- The child’s connection to their current home, school, and community
- The wishes of each parent
- The child’s physical and emotional needs
- The child’s age and health
- Each parent’s capabilities and willingness to provide for a child’s basic needs
- The relationship between the child and each parent
Advocating for your wishes and the interests of your child in litigation can be frustrating and exhausting, but it can be easier with a qualified attorney representing you and your family’s needs.
Q: Can a 12-Year-Old Decide Which Parent to Live With in Illinois?
A: There is no age before becoming a legal adult that a child can choose where they live, and a child cannot refuse to follow a court order. The closer a child is to 18 during a child custody determination, the more likely the court is to listen to their wishes for living arrangements.
Although the court may listen to a 12-year-old, particularly if they have a mature and well-reasoned explanation, it is less likely than if the child were older. The court is never required to listen to the child’s wishes, as the priority is always going to be the child’s interests.
Q: What If a Child Doesn’t Want to Live With a Parent?
A: If custody has already been determined, and the court believes that it is in the child’s interests to live with a parent, the child’s wishes don’t matter. The child and the parents must follow the court order. In some cases, a modification to the court order is necessary if the child’s wishes have changed over time, other factors have changed, or important issues were not considered at the initial custody determination. If the child is in physical or emotional danger from living with a parent, that parent should be considered unfit to care for the child.
Q: What Makes a Parent Unfit in Illinois?
A: The term “unfit parent” is a legal term meaning that a parent is incapable of providing for the child’s basic needs and cannot be entrusted with the care of the child. The grounds for declaring a parent unfit include:
- Severe or repeated cruelty
- Repeated child neglect
- Lack of reasonable responsibility and interest in the child’s well-being
- Failure to protect the child from a dangerous environment
- Conviction for specific serious crimes
- Repeated failure to provide for a child’s basic needs despite being able to
Proving these or other situations will determine a parent to be unfit.
Q: Is Illinois a 50-50 Child Custody State?
A: Illinois may assign child custody any way that they determine to be in the child’s interests. The family court does prefer joint custody, as it provides a child with a continued and meaningful relationship with both parents, and both parents have an equal say in the essential decisions about their child’s life. The court considers this to be in a child’s interests in most cases.
However, if the relationship between parents is significantly contentious, or there is a threat to the child’s well-being in joint custody, then joint custody will not be assigned.
Contact Stange Law Firm
A compassionate and skilled attorney at Stange Law Firm can help you and your loved ones decide the ideal course of action for child custody, such as mediation, collaborative negotiation, or litigation. We have worked for years to help the families in our communities navigate these complex cases. Contact our firm today.