Can My Child Choose the Parent He or She Wants to Live With?

 Posted on October 09, 2024 in Family Law

Some of the most critical issues in a divorce involve the allocation of parental responsibilities, formerly known in Illinois as child custody. The parents may share parental responsibilities, with the child living more or less equally with both parents, or one parent will be designated as the primary residential parent while the other will have less parenting time. The court will consider a number of factors when determining parental responsibilities.

The overarching theme will always be the best interests of the child. But what happens when children express a clear preference on which parent they want to live with? Does this impact how the judge will determine parental responsibilities? If you find yourself in this situation, it can be hurtful to find that your child does not want to primarily live with you.

Putting your emotions aside, what if you believe your ex has told your child things that are not true as a means of becoming the primary residential parent? Or what if you truly believe your child’s best interests will not be served by living with his or her other parent? The best thing you can do is to discuss the issue with your St. Charles, IL parental responsibilities attorney from Mirabella, Kincaid, Frederick & Mirabella, LLC.

Does a Judge Have to Take the Child’s Wishes into Consideration?

While a family court judge will hear a child’s wishes regarding which parent they would like to primarily live with, the judge is not obligated to agree with the child’s preference — although it will be considered. Judges are cautious when a child asks to live with one parent over the other because the child may have been manipulated or influenced by a parent or may have unrealistic expectations that living with one parent will be more fun or permissive.

All children under the age of 18 are minors and, therefore, unable to make legal decisions on their own behalf. That being said, a judge is more likely to listen to an older child's wishes than those of a younger child, because the older child is less likely to be unduly influenced by a parent.

While there is no law in Illinois that specifies an age, a judge will put more weight be on a child’s preferences the older they become. Some children are more mature than others, so the maturity of the child and the specifics of the situation will determine how much weight the judge will give to that child’s wishes.

If a mature child lays out a solid case, perhaps including that he or she wants to remain in the current school, for example, then that child’s preferences could be a significant consideration. On the other hand, a child who wants to live with one parent because that parent lets him or her do whatever they want, is not likely to be afforded much consideration.

Will the Child Have to Testify Against the Parent He or She Does Not Want to Live With?

It is very unusual for a child to be required to testify in open court regarding his or her wishes. The child’s wishes can be heard in other ways, such as having a court-appointed guardian ad litem or the judge meet with the child and parents together and separately. Any information gathered by a therapist, social worker, or guardian ad litem will be relayed to the judge. The judge may choose to meet with the child privately in the judge’s chambers, along with the attorney for each parent and a court reporter.  

Contact a Kane County, IL Parental Responsibilities Lawyer

Determining which parent a child will primarily live with can bring up all sorts of emotions for the parents and the child. Having a St. Charles, IL parental responsibilities attorney from MKFM Law by your side helps ensure the decisions will be fair and in your child’s best interests. We serve family law clients at our offices in Kane and DuPage Counties. Contact Mirabella, Kincaid, Frederick & Mirabella, LLC at 630-665-7300 to schedule an initial attorney meeting.